GEO.  H.  DIXON 

LAW  BOOKSELLER 

AND  PUBLISHER 

522  Walnut  St. 

PHiladelpHim 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE   LAW   OF 


LANDLORD  AND  TENANT 


IN 


PENNSYLVANIA 


BY 

RICHARD  J.  WILLIAMS 

M  ( 

Of  the  Philadelphia  Bar 


SECOND    EDITION 


PHILADELPHIA 

T.  &  J.  W.  JOHNSON  &  CO. 
1901 


T 

XM4753L 


COPYRIGHT,  1901, 

BY 

T.  &  J.  W.  JOHNSON  &  Co. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 


LEASES. 


PAGE  5. 


AGREEMENTS  FOR  A  LEASE. 

SECTION 

1.  Directions  for  preparing. 

2.  A  specific  performance  will  be 

decreed. 

3.  Damages  for  a  breach  of  an 

agreement  for  a  lease. 

4.  Where  a  tenant  under  a  parol 

agreement  for  a  lease  is  let 
into  possession  and  makes 
improvements. 

5.  A  lease  completed  by  an  actual 

entry  of  the  tenant. 

PAROL  EVIDENCE  AS  APPLIED  TO 
WRITTEN  AGREEMENTS. 

6.  Admissible  in   case   of  fraud, 

accident  or  mistake. 

7.  Admissible     in     some     other 

cases. 

8.  Agreement  in  writing  to  ex- 

clude verbal  understand- 
ings, etc. 

CONSTRUCTION  OF  LEASES. 

9.  Rules  for  construction. 

THE  NATURE  OF  A  LEASE. 
10.  Definition  of  a  lease. 


SECTION 

11.  Distinction    between    a    lease 

and  license. 

12.  Incorporeal    things    may    be 

rented. 

13.  Lease  of  a  farm  on  shares. 

IMPLIED  RENTING. 

14.  In  case  a  tenant  remains  with 

permission    and    pays   rent 
after  lease  expires. 

15.  Occupancy    under   an   agree- 

ment for  a  lease. 

1 6.  Occupancy     of     land     where 

there   is   no   agreement   to 
pay  rent. 

17.  Where  a  purchaser  at  sheriffs 

sale  elects  not  to  take  the 
tenant. 

18.  Where    a   tenant   remains   in 

possession  after  the  end  of 
his  lease  without  consent. 

19.  A  tenant  in  possession  under  a 

void  lease. 

UNWRITTEN  LEASES. 

20.  Act  of  1772,  requiring  writing. 

DATE  OF  LEASE. 

21.  Mistake  or  omission  of  date. 

V 


VI 


TABLE    OF    CONTENTS. 


THE  NAMES  OF  THE  PARTIES. 

SECTION 

22.  Mistakes     or     omissions     of 

names. 

LEASES  BY  AGENTS. 

23.  The   manner   of   signing   and 

sealing  a  lease  by  an  agent. 

24.  Ratification   of  a  parol   lease 

void  under  the  statute  of 
frauds. 

25.  An  agent  should  have  sealed 

authority  to  make  a  sealed 
lease. 

26.  Agents  sealing  leases  without 

authority  personally  liable. 

27.  Leases   by   agents   not  under 

seal. 

28.  Parol   evidence   admissible  to 

prove  a  lease  not  under  seal 
as  principal's. 

29.  Agents  making  leases  in  their 

own  names  deprive  their 
principals  of  their  rights  as 
landlords. 

30.  When    agent    makes    a    lease 

without  disclosing  his  prin- 
cipal, tenant  cannot  deny 
that  the  agent  is  not  land- 
lord. 

31.  Agent    without    authority    in 

writing  may  make  lease  not 
over  three  years. 

32.  Personal  liability  of  agents  for 

their  contracts  when  they 
do  not  disclose  their  prin- 
cipals. 

LEASES  BY  AND  TO  PARTNERS. 

33.  Leases  by  partners  should  be 

sealed  by  all  the  partners. 

34.  Lease  by  one  partner  of  part- 

nership property. 

35.  Partners  taking  leases  in  their 

own  names  for  the  firm, 
hold  in  trust  for  the  firm. 


LEASES  BY  MINORS  AND  GUARD- 
IANS. 

SECTION 

36.  Minors'  leases. 

37.  Leases  by  guardians. 

LEASES    BY    AND    TO    MARRIED 
WOMEN. 

38.  Power  to  lease  under  act  of 

1893. 

39.  Leases  to  married  women. 

LEASES  BY  TENANTS  FOR  LIFE. 

40.  Lease      must      terminate      at 

death. 

LEASES  BY  AND  TO  CORPORATIONS. 

41  May    make    leases    as    natural 
persons. 

42.  May  contract  without  writing. 

43.  Leases    to    foreign    corpora- 

tions. 

44.  Officers  must  be  authorized  to 

lease. 

45.  Corporation   .  cannot     disable 

itself  from  performing  pub- 
lic duties  by  a  lease. 

46.  Corporate  seal  not  necessary 

to    hold    a    corporation    in 


47.  Corporation  may  ratify  agent's 

acts. 

LEASES  BY  TENANTS  IN  COMMON. 

48.  May   make   joint   or   separate 

leases. 

49  When  a  joint  lease  is  made  by 
tenants  in  common  they 
must  sue  jointly. 

50.  Liability  of  tenant  in  common 

to  pay  his  co-tenants  not  in 
possession. 

LEASES  BY  TRUSTEES  AND  EX- 
ECUTORS. 

51.  Powers  of  trustees  limited  by 

the  trusts. 


TABLE   OF   CONTENTS. 


Vll 


SECTION 

52.  Administrator  cannot  lease. 

53.  Until  real  estate  is  sold  to  pay 

debts  the  rents  go  to  heirs 
or  devisees. 

54.  An  executor,  unless  he  is  made 

a  trustee  of  real  estate,  can- 
not lease  the  same. 

55.  In  case  executors  have  a  mere 

power  to  sell  real  estate. 

56.  In  case  of  a  trust  to  sell,  but 

not  to  rent. 

57.  Power  of  trustees  to  agree  to  a 

renewal  of  lease. 

58.  Case  of  personal  liability  of  an 

executrix  under  a  lease. 

59.  Assignee    for    the    benefit    of 

creditors  cannot  lease. 

DESCRIPTION  OF  PROPERTY 
RENTED. 

60.  Not  necessary  to  particularly 

describe  premises  in  a  lease. 

61.  Ambiguous    description    sup- 

plied by  evidence  outside  of 
the  lease. 

62.  List  of  furniture  should  be  an- 

nexed to  lease. 

63.  Intention   of   what   is   leased, 

from  actual  use. 

64.  Case  of  property  described  as 

on  the  wrong  corner. 

65.  Exceptions    and    reservations 

in  leases. 

66.  Impiled  grant  of  things  neces- 

sary for  the  use  of  property. 

67.  Authority  of  landlord  to  enter 

after  he  has  leased. 

TERM  OF  A  LEASE. 

68.  Estate  for  years. 

69.  Estate  at  will. 

70.  Tenant  from  year  to  year. 

71.  Tenancy  from  quarter  to  quar- 

ter, from  month  to  month, 
etc. 

72.  Perpetual  leases. 

73.  Lease  without  a  term  stated. 


SECTION 

74.  Tenancy  from  year  to  year  by 

express  agreement. 

75.  Term   of  tenancy  implied   by 

the  payment  of  rent. 

76.  Landlord  may   elect  to  treat 

tenant    holding    over    after 
lease  as  tenant  or  trespasser. 

77.  Tenant    by    the    month    may 

terminate   lease    at   end   of 
any  month. 

78.  A  lease  from  year  to  year,  at 

the  pleasure  of  the  parties,  a 
continuous  lease. 

79.  The  beginning  and  end  of  a 

lease. 

80.  Continuation   of  lease  at  op- 

tion of  tenant. 

81.  Agreements  for  extension   of 

terms  and  options. 

RENT. 

82.  In  what  payable. 

83.  What  rent  may  issue  out  of. 

84.  Interest  on  rent. 

85.  When  no  time   fixed  for  the 

payment  of  rent. 

86.  Rent  due  after  a  sale. 

87.  Custom  in  Philadelphia  to  ap- 

portion rent. 

88.  A  tenant  bound  by  his  cov- 

enant to  pay  rent,  although 
he  assigns  lease. 

89.  Rent  due  landlord  before  he 

dies   goes   to   his   executor 
as  personal  property. 

90.  Rent  due  after  death  of  lessor 

goes  to  his  heir  or  devisee. 

91.  An  agreement  of  tenant  to  pay 

assessments. 

92.  Notice    to    lessor   on    contin- 

gency releasing  lessee. 

93.  A  landlord  leaving  a  number 

of  children,  each  child  is  en- 
titled to  his  or  her  share. 
94.  Apportionment    of    rent    in 
case  of  sale  of  reversion  by 
landlord  in  parts. 


Vlll 


TABLE   OF   CONTENTS. 


SECTION 

95.  Rent     payable     in     advance 

upon  contingency. 

96.  Tenant  bound  by  his  cove- 

nant to  pay  rent  though 
property  is  burned. 

97.  Instances  of  losses  to  tenants 

for  the  want  of  an  exemp- 
tion from  the  payment  of 
rent  in  case  of  fire. 

98.  Rents  made  payable  to  tenant 

for  life  apportioned  under 
act  of  1834. 

99.  Rent  payable  in  grain,  etc., 

apportioned    under    act    of 

1834- 

loo.  When  rent  is  payable  in 
grain,  it  is  not  due  until  de- 
livered. 

lor.  Interest  of  landlord  in  share 
of  grain  cannot  be  taken  in 
execution  before  severance. 

102.  Good-will  of  demised  prem- 

ises. 

COVENANTS. 

103.  Covenants  running  with  the 

land. 

104.  Implied  covenants  run  with 

the  land. 

105.  When  covenants  run  with  the 

land. 

106.  Assignees    bound    by    cove- 

nants running  with  the  land. 

107.  Examples  of  covenants  run- 

ning with  the  land. 

108.  Covenant  to  pay  rent. 

109.  Covenants  not  to  assign  or 

underlet. 

no.  Are  construed  strictly. 
in.  An  assignment  by  law  not  a 

breach. 

112.  Covenant  as  to  use  and  occu- 

pancy. 

113.  Landlord   not  bound   to   re- 

pair. 

114.  The  repairs  a  tenant  is  bound 

to  make. 


SECTION 

115.  Express   covenant  of  tenant 

to  repair. 

116.  Tenant  is  not  bound  by  his 

covenant  to  repair  injuries 
by  act  of  God  or  public 
enemies. 

117.  Tenant  cannot  charge  land- 

lord for  permanent  repairs 
made  without  his  authority. 

118.  Agreement  of  landlord  to  re- 

pair minor  to  that  of  tenant 
to  pay  rent. 

119.  Measure    of    damages    when 

landlord  breaks  his  agree- 
ment to  repair. 

120.  Tenant  not  relieved  from  loss 

in  business  during  repairs. 

121.  The  covenant  that  improve- 

ments shall  remain  should 
be  guarded  against  by  the 
tenant  as  dangerous. 

122.  Definition  of  the  word  "im- 

provement." 

123.  Covenant  of  landlord  to  sell 

to  tenant. 

124.  Covenant  for  re-entry. 

125.  Requisites  before  entry. 

126.  There  must  not  be  a  breach 

of  the  peace  in  making 
entry. 

127.  In  Pennsylvania  a  re-entry  is 

not  necessary  for  a  for- 
feiture. 

128.  Waiver  of  forfeiture. 

129.  Amicable  action  and  confes- 

sion of  judgment  in  eject- 
ment. 

130.  If  tenant  has  not  paid  his  rent 

punctually  he  must  be 
warned  before  entry  of  the 
judgment  for  non-payment. 

131.  For    a    purchaser    to    have 

benefit,  the  lease  should  be 
assigned. 

132.  No  appeal  to  Supreme  Court 

allowed. 

133.  Position  of  under-tenants. 


TABLE   OF    CONTENTS. 


IX 


134.  Possession  by  those  holding 

paramount  title. 

135.  Implied    covenant   for    quiet 

possession. 

136.  Implied     covenant     to     pro- 

tect   tenant    against    para- 
mount claims. 

137.  Implied     covenant     to     use 

property  in  tenant-like  man- 
ner. 

138.  Covenants  as  to  farming. 

INABILITY  OF  TENANT  TO  DIS- 
PUTE THE  TITLE  OF  HIS 
LANDLORD. 

139.  The  rule  and  its  operation. 

140.  Liability  of  tenant  to  forfeit 

his  lease. 


SECTION 

141.  Case   of   collusion   with  ten- 

ant. 

142.  Case  of  fraud  by  the  landlord. 

SEALING  AND  EXECUTION  OF 
LEASE,  STAMPS  AND  RE- 
CORDING. 

143.  Where  landlord  does  not  sign 

lease. 

144.  Where  tenant  does  not  sign 

lease. 
145  Kind  of  seal. 

146.  Witnesses  required. 

147.  Erasures       and      Interlinea- 

ations. 

148.  Stamps  on  leases. 

149.  Recording. 


CHAPTER  II. 

FIXTURES. 
PAGE  51. 


150.  Domestic  fixtures. 

151.  Trade  fixtures. 

152.  Agricultural  fixtures. 

153.  Fixtures  not  removed  at  the 

end  of  lease. 

154.  Tenant's    fixtures    liable    to 

execution. 


155.  Notice  to  landlord  upon  con- 

stable's sale  of  a  house  as 
a  trade  fixture. 

156.  The     duty     of    placing    fire 

escapes  in  Philadelphia. 


.     CHAPTER  III. 

SECURITY  FOR  RENT. 
PAGE  56. 


157.  Where  surety  is  liable  to  be 

sued  at  once. 

158.  Covenant  of  suretyship  runs 

with  the  land. 

159.  Tenant   bound   to   exonerate 

surety. 


160.  Position  of  surety  in  case  of 

a  tenant  holding  over. 

161.  Alteration     of     lease     as     it 

affects  surety. 

162.  Discharge  of  surety  by  varia- 

tion of  lease. 


TABLE    OF    CONTENTS. 


163.  Discharge  of  surety  if  land- 

lord allows  goods  distrained 
to  be  removed. 

164.  Demand  of  rent  by  landlord. 


165.  Discharge  of  surety  by  giving 

time. 

166.  Surety   liable   under    a   void 

lease. 


CHAPTER  IV. 

TRANSFERS    OF    INTERESTS    OF    LANDLORDS    IN    DEMISED 
PREMISES. 

PAGE  60. 


SECTION 

167.  By  a  sale  and  conveyance  of 

the  demised  premises. 

168.  By    an    assignment    of    the 

landlord  for  the  benefit  of 
creditors. 

169.  By  a  conveyance  to  a  trustee 

to  collect  rents,  etc. 

170.  By  a  judicial  sale. 

171.  Notice  of  affirmation  of  lease 

to  be  given  to  tenant. 


SECTION 

172.  When  lease  antedates  incum- 

brance,  lease  preserved. 

173.  When  rent  is  paid  in  advance. 

174.  Rent  before  and  after  date  of 

sheriff's  deed. 

175.  The  right  of  a  purchaser  at 

an   orphans'    court   sale   to 
rents  or  possession. 

176.  Transfer  by  the  will  of  the 

landlord. 

177.  Transfer  by  descent. 


CHAPTER  V. 


TRANSFERS    OF    INTERESTS    OF    TENANTS    IN    DEMISED 
PREMISES. 


PAGE  71. 


ASSIGNMENT  OF  LEASE  BY  TEN- 
ANT AND  UNDERLETTING. 

SECTION 

178.  Leases  not  to  be  assigned  ex- 

cept by  writing. 

179.  Difference    between    assign- 

ments and  underletting. 

180.  Position  of  under-tenant. 

181.  Power  of  tenant  to  assign  or 

underlet. 

182.  Tenant    bound    to    pay    rent 

after  he  assigns  his  lease. 


183.  Assignee  liable  as  long  as  he 

holds  title. 

184.  Implied     indemnity     of     as- 

signee. 

185.  Implied  indemnity  of  tenant 

to  under-tenant. 

ASSIGNMENT     OF     LEASE     WHEN 
TENANT  DIES. 

186.  A  lease  a  part  of  decedent's 

assets. 


TABLE   OF    CONTENTS. 


XI 


187.  When      representatives      be- 

come personally  liable. 

LEASE  IN  CASE  OF  AN  ASSIGNMENT 
FOR  THE  BENEFIT  OF 
CREDITORS. 

188.  Assignee   for   the   benefit   of 

creditors   has   the   right  to 
accept  lease  or  not. 

189.  Landlord's  preference  under 


SECTION 

the  act  of  1891,  in  case  of  as- 
signments for  the  benefit  of 
creditors. 

190.  Agreement  of  assignee  with 

sheriff  for  sale  of  goods. 

191.  Liability  of  assignee  for  rent. 

SHERIFF'S  LEVY  AND  SALE  OF  A 
LEASE. 

192.  Practice  as  to  levy  and  sale. 


CHAPTER  VI. 

POWERS   OF   TENANT   AND    LANDLORD   TO    MORTGAGE. 

PAGE  77. 


193.  Powers  under  the  act  of  1855. 

194.  Lease  must  be  recorded. 

195.  Machinery  put  in  after  mort- 

gage. 

196.  Mortgage  a  breach  of  cove- 

nant not  to  assign. 

197.  The  act  is  not  restricted  to 

mining  leases. 


198.  Fixtures  and  machinery  can- 

not   be    removed    without 
consent  of  mortgagee. 

199.  Act  of  1853  as  to  mortgages 

of  mines. 

200.  Act  of  1891  as  to  mortgages 

of  ores,  etc. 

201.  Mortgages  of  rentals  or  roy- 

alty. 


CHAPTER    VII. 

THE  RECOVERY  OF  POSSESSION  OF  DEMISED   PREMISES  UNDER 

THE  ACT  OF  APRIL   3,   1830,  FOR  THE  NON-PAYMENT 

OF  RENT. 


PAGE  80. 


SECTION 

202.  The  act  of  1830. 

203.  Who  may  have  the  benefit  of 

the  act. 

204.  The  rent  due  must  be  certain. 

205.  The  notice  to  quit. 

206.  By    whom     notice     can     be 

given. 


SECTION 

207.  To   whom   notice   should  be 

given  and  manner  of  serv- 
ice. 

208.  Payment  of  rent  on  removal. 

209.  The  complaint. 

210.  Summons. 

211.  The  service  of  the  summons. 


Xll 


TABLE    OF    CONTENTS. 


212.  The  hearing. 

213.  The  necessary  proof. 

214.  The  judgment. 

215.  Appeal. 


SECTION 

216.  Certiorari. 

217.  The  execution. 

218.  Appeal  to  Supreme  Court 


CHAPTER  VIII. 

PROCEEDINGS  TO  OBTAIN  SECURITY  FOR  RENT  OR  POSSESSION 

WHEN   TENANT   REMOVES    FROM    THE    DEMISED 

PREMISES,   IN   PHILADELPHIA. 


PAGE  89. 


SECTION 

219.  Act  of  March  25,  1825. 

220.  Tenant  must  remove. 

221.  Notice    must    be    signed    by 

landlord  or  his  agent. 


SECTION 

222.  Complaint  must  show  a  lease 

for  years. 

223.  Tender  of  rent. 


CHAPTER  IX. 


COLLECTING  RENTS. 


PAGE  92. 


SECTION 

224.  Jurisdiction  of  justices  of  the 

peace,  etc. 

225.  The  hearing. 

226.  Suits  in  court. 

227.  Practice  in  equity  as  to  re- 

ceivers collecting  rents. 

228.  Collection  of  rent  due  during 

administration  of  receivers. 

229.  Loss  of  rents  collected  by  re- 

ceiver from  sub-tenants. 

230.  Recovery  of  rent  in  case  of 

death  of  tenant. 

231.  Landlord  to  present  claim  to 

the  orphans'  court. 

232.  Collection  of  rent  in  case  of 

bankruptcy. 

233.  Rent  under  the  bankrupt  act 

of  1898  not  apportioned. 


RIGHTS  TO  RENT  FROM  SHERIFF'S 
SALES  OF  PERSONAL  PROP- 
ERTY. 

SECTION 

234.  Act  of  1836. 

235.  Rent  apportioned. 

236.  Landlord  should  notify  sher- 

iff of  his  claim. 

237.  Note    taken    no    waiver    of 

claim. 

238.  The  goods   must  have  been 

liable  to  distraint. 

EQUITABLE  RELIEF  TO  A  TENANT 
IN  CASE  RENT  is  CLAIMED 
BY  Two  ADVERSE  PARTIES. 

239.  The  nature  of  the  proceeding. 


TABLE    OP    CONTENTS. 


Xlll 


PREFERENCE     OF     WAGES    OVER 
RENT. 

SECTION 

240.  Act  of  April  9,  1872. 

241.  The  claim  for  wages  may  be 

sold  and  assigned. 


COLLECTION    OF    RENT    BY    AT- 
TACHMENT. 

SECTION 

242.  Liability   of  rent  due  to   be 

attached  by  an  attachment- 
execution. 

243.  Liability  of  tenant  in  case  of 

foreign   attachment   against 
the  landlord. 


CHAPTER  X. 

DISTRAINT  FOR  RENT. 

PAGE  101. 


SECTION 

244.  Act  of  March  21,  1772,  regu- 

lating distraints  for  rent. 

245.  Distraint  after  termination  of 

lease. 

246.  Distraint  by  lessor  who  has 

conveyed. 

247.  Distraint    by   executors    and 

administrators. 

248.  Distraint  by  an  assignee   of 

the  reversion. 

249.  Distraint  by  joint  tenants. 

250.  Distraint  by  tenants  in  com- 

mon. 

251.  Distraint  by  guardians. 

252.  Distraint  by  receivers. 

253.  Distraint  by  heirs,   devisees, 

etc. 

254.  What  rent  may  be  distrained 

for. 

255.  Goods  liable  to  distress. 

256.  Goods    privileged   from   dis- 

tress. 

257.  Authority  given  to  distrain. 

258.  Penalty  for  distraining  when 

no  rent  is  due. 

259.  Distraining    for    more     rent 

than  is  due. 

260.  Entering  premises  to  make  a 

distraint. 

261.  Distraining  upon  the  goods. 


SECTION' 

262.  Rescue  of  goods  distrained. 

263.  Interference     with     distraint 

proceedings. 

264.  Unreasonable     or     excessive 

distraint. 

265.  Placing  watchman. 

266.  Leaving  goods  on  premises. 

267.  Notice,  etc.,  to  tenant. 

268.  Tender  of  rent. 

269.  Replevin. 

270.  The  time  for  issuing  the  writ. 

271.  Order  for  the  writ. 

272.  Entering  security. 

273.  The  pleadings. 

274.  Trial  and  judgment. 

275.  Replevin  the  proper  remedy 

for    illegal    distraint    upon 
stranger's  goods. 

276.  Liability  of  landlord  for  dis- 

training   on     goods    of    a 
stranger. 

277.  Appraisement  of  the  goods. 

278.  Sale  of  goods. 

279.  Manner  of  sale. 

280.  Exemption  of  rented  pianos. 
28,1.  Exemption    of    sewing    ma- 
chines. 

282.  Liability  of  goods   sold   ac- 
cording to  instalment  plan. 


XIV 


TABLE   OF    CONTENTS. 


SECTION 

283.  Three   hundred   dollars    ex- 

emption law. 

284.  Appraisers  to  be  appointed. 

285.  Under-tenants    cannot   claim 

benefit. 

286.  Refusal  of  exemption. 

287.  Who  can  claim  exemption. 

288.  When  claim  should  be  made. 

289.  Request  for  appraisement. 

290.  How   claim   is   to   be   made 

when  tenant  absent. 


SECTION 

291.  Right  to  distrain  on  prop- 

erty   fraudulently    removed 
under  act  of  1772. 

292.  Goods  of  a  stranger  not  to 

be  followed. 

293.  Goods  sold  are  exempt. 

294.  Rent  must  be  due  at  time  of 

removal. 

295.  Right  to  collect  rent  not  due 

under  act  of  1825. 


CHAPTER  XL 


LIABILITY  OF  GOODS   OF  TENANT  FOR  TAXES   OF  LANDLORD. 

PAGE  124. 


SECTION 

296.  Act  of  April  19,  1883,  provid- 
ing for  a  right  to  distrain 


on  tenant's  goods  for  taxes 
in  cities  of  the  first  class. 


CHAPTER  XII. 


RIGHTS  TO  CROPS  AND  EMBLEMENTS. 
PAGE  126. 


SECTION 

297.  Definition  of  emblements. 

298.  Growing  grass. 

299.  Things  not  of  annual  growth. 

300.  Right   lost   by    forfeiture    of 

lease. 

301.  Definition  of  waygoing  crop. 

302.  Who  entitled  to  the  crop. 

303.  Straw  included. 

304.  Must  be  fall  grain. 

305.  Crop  may  be  sold  by  tenant. 

306.  The  protection  of  the  crop. 


SECTION 

307.  Crop  in  case  of  execution. 

308.  Definition  of  a  cropper. 

309.  Landlord     not     entitled     to 

grain     as     rent     until     de- 
livered. 

310.  Under   orphans'   court   sale, 

crops  as  rent  pass  to  pur- 
chaser. 

311.  Crops  payable  as  rent,  grow- 

ing at  the  death  of  landlord, 
go  to  heirs. 


TABLE   OF    CONTENTS.  XV 


CHAPTER  XIII. 

POWER  OF  TENANT  TO  BIND  OWNER'S  PROPERTY  FOR 
MECHANICS'  LIENS. 

PAGE  130. 

SECTION;  SECTION 

312.  In  what  cases  properties  are  quiring  written  consent  ot 

bound.  landlord  for  tenant  to  bind 

313.  Act    of    May    18,    1887,    re-  premises  for  repairs,  etc. 


CHAPTER  XIV. 

INSURANCE   BY   TENANTS. 
PAGE  133. 

SECTION 

314.  Such  insurance  distinguished 
from  other  insurance. 


CHAPTER  XV. 

EVICTION. 

PAGE  134. 

SECTION  SECTION 

315.  Eviction    in    part    does    not  319.  Landlord  using  a  way. 

suspend     the     whole     rent  320.  Operation     against     current 

when  tenant  remains.  rent. 

316.  Landlord    taking    possession  321.  Eviction  by  an  injunction. 

of  ruins  after  a  fire.  322.  No  eviction  by  conduct  not 

317.  Physical  expulsion  not  neces-  depriving  tenant  of  the  use 

sary.  of  property. 

318.  Where   tenant   takes   posses-  323.  Waiver  of  eviction  by  paying 

sion  in  case  of  tenant's  de-  rent, 

sertion. 


TABLE   OF    CONTENTS. 


CHAPTER  XVI. 

SURRENDER. 

PAGE  138. 

SECTION  SECTION 

324.  Parol  surrender  of  lease  for  329.  Surrender  by  a  tenant  does 

more  than  three  years.  not  extinguish  the  term  of  a 

325.  Surrender  must  be  accepted.  sub-tenant. 

326.  Evidence  of  acceptance.  330.  Effect  of  silence  of  landlord 

327.  Surrender  to  agent.  upon  a  surrender. 

328.  Effect    of    surrender    on    re- 

quest. 


CHAPTER  XVII. 

FORCIBLE    ENTRY    AND    DETAINER. 

PAGE  141. 

SECTION  SECTION 

331.  Act  of  assembly  relating  to  334.  Tenant  holder-over  not  liable 

same.  for  forcible  detainer. 

332.  Must    be    a    breach    of    the  335.  To   constitute   forcible   entry 

peace.  or   detainer  there  must  be 

333-  Forcible  detainer.  violence. 


CHAPTER  XVIII. 

PROCEEDINGS    TO    RECOVER   POSSESSION    OF    DEMISED    PREM- 
ISES AT  THE  END  OF  THE  TERM  UNDER  THE  ACT  OF 
MARCH  21,   1772. 

PAGE  145. 

SECTION  SECTION 

336.  Words  of  the  act.  343.  Service  of  summons. 

337.  Who  are  entitled  to  the  bene-  344.  Proceedings  before  the  jury. 

fit  of  the  act.  345.  Proceedings  when  the  title  is 

338.  Rent  must  be  certain.  disputed. 

339.  Notice  to  quit.  346.  Finding    of   the    jury,    judg- 

340.  Service  of  notice  to  quit.  ment  and  writ  for  posses- 

341.  Complaint.  sion. 

342.  Venire  to  the  sheriff. 


TABLE   OF    CONTENTS. 


XV11 


SECTION 

347.  Proper  form  for  the  record. 

348.  Removal  by  certiorari. 

349.  What  can  be  shown  at  hear- 

ing upon  certiorari. 


SECTION 


350.  Appeal      to      the      Supreme 

Court. 

351.  Tenant  may  traverse  the  in- 

quisition   in    an    action    of 
ejectment. 


CHAPTER  XIX. 


PROCEEDINGS  TO   RECOVER  POSSESSION  AT  THE  END   OF  THE 
LEASE  UNDER  THE  ACT  OF  DECEMBER  14,   1863. 


PAGE  155. 


SECTION 

352.  Words  of  the  act. 

353-  Power  of  justice  of  the  peace 

extended  to  aldermen. 
354.  Act  extended  to  assignees. 
355-  Appeal  will  be  a  superseded* 

in  Philadelphia. 

356.  Tenancy  to  be  established  by 

parol  or  written  agreement. 

357.  Notice  to  quit. 

358.  Tenant    not    bound    to    give 

notice  to  quit. 

359.  Notice  given  by  assignee  of 

lease. 

360.  Verbal  notice. 

361.  Time  of  giving  notice. 


SECTION 

362.  No  limitation  for  landlord  to 

proceed  on  notice. 

363.  Notice     to     quit     may     be 

waived. 

364.  Service  of  notice  for  posses- 

sion. 

365.  Complaint. 

366.  Summons. 

367.  Service  of  summons. 

368.  Hearing. 

369.  Warrant  for  possession. 

370.  Appeal. 

371.  Judgment. 

372.  Record. 

373.  Certiorari. 

374.  Appeal  to  Superior  Court. 


CHAPTER  XX. 


PROCEEDINGS  TO  RECOVER  POSSESSION  IN  PHILADELPHIA  ON 

A  LOST  LEASE. 

PAGE  167. 

SECTION 

375.  Act  of  February  28,  1865. 


XV111 


TABLE  OF   CONTENTS. 


CHAPTER  XXL 


NEGLIGENCE  AS  TO  RENTED  PROPERTY. 


PAGE  169. 


SECTION 

376.  Defects  before  renting. 

377.  Where  property  rented  is  un- 

fit for  use. 

378.  Landlord  employing  plumber. 

379.  Liability  of  owners. 

380.  Landlord    and    tenant    may 

both  be  liable. 

381.  Liability  in  case  of  an  open 

grate. 

382.  Landlord  and  tenant  may  sue 

at  same  time. 

383.  Where     landlord     interferes 

with  tenant. 

384.  Where   tenant  injures   prop- 

erty. 

385.  Liability  between  tenants. 


SECTION 

386.  Liability  depending  upon  ob- 

ligation to  repair. 

387.  Remedy  in  case  tenant  com- 

mits waste. 

388.  Act  of  1822  as  a  remedy  for 

waste. 

389.  Order  to  permit  inspection  of 

waste. 

390.  Writ  of  estrepement. 

391.  Remedy  by  suit  for  waste. 

392.  Remedy  by  an  injunction  for 

waste. 

393.  Liability  of  contractor  for  in- 

jury. 

394.  Liability  for  leakage  from  a 

cess-pool. 

395.  Liability    for    not    repairing 

sidewalk. 


CHAPTER  XXII. 

RIGHTS  OF  LANDLORDS  AND  TENANTS  IN  CASE  RENTED  PROP- 
ERTY IS  TAKEN  FOR  PUBLIC  USE. 


PAGE  176. 


396.  Constitutional  provision. 

397.  Difference  when  state  takes. 

398.  Damages    awarded    to   land- 

lords and  tenants. 

399.  Party    wall    condemned    and 

taken      down      by      public 
authority. 

400.  Tenant  can  recover  damages 

to   building  erected   before 
ordinance  for  removal. 


SECTION 

401.  Landlords   and   tenants   may 

unite  to  recover  damages 
for  taking  property  for 
public  use. 

402.  Land  may  be  cultivated  until 

possession  taken. 

403.  Effect  of  taking  on  liability 

for  rent. 

404.  What    damages    can    be    re- 

covered. 


TABLE   OF    CONTENTS. 


XIX 


CHAPTER  XXIII. 

FEES   OF   CONSTABLES,   JUSTICES   OF  THE  PEACE  AND   WATCH- 
MEN IN  LANDLORD  AND  TENANT  PROCEEDINGS. 


PAGE  180. 


SECTION 

405.  The  act  of  Feb.  17,  1899,  re- 
lating to  fees  of  constables. 
405*.  The  act  of  May  23,  1893,  re- 


SECTION 

lating  to  the  fees  of  justices 
and  magistrates. 

406.  No   provision   in  the  act  of 
1899  for  watchman. 


CHAPTER  XXIV. 

MINING   LEASES. 
PAGE  184. 


SECTION 

407.  Mining    leases    in    Pennsyl- 

vania. 

408.  Mining   right   distinct   from 

surface  right. 

409.  Rights  of  tenant  for  life. 

410.  Rights  of  guardians  to  lease. 

411.  Tenant  bound  to  work  mine. 

412.  Clause  for  re-entry  necessary. 

413.  Incidental    rights   of   mining 

tenant. 

414.  Right  of  support. 

415.  Loss  of  springs  on  surface. 

416.  Tenant  cannot  open  mines. 

417.  Rent  to  be  paid,  though  no 

clay  be  taken  out,  not 
damages. 

418.  No  warranty  of  coal. 

419.  Relief  in  case  of  mistake. 

420.  Tenants  taking  partners. 

421.  Forfeiture  for  not  developing 

favored. 

422.  Manner  of  conveying  in  case 

of  sales  of  minerals. 

423.  Questions     as     to     whether 

there  is  a  sale,  a  lease  or 
right  to  take  coal  without  a 
sale. 


SECTION 

424.  Mining  by  tenants   in   com- 

mon. 

425.  Oil  and  gas  leases. 

426.  Right  to  mine  for  oil  or  gas 

is  necessarily  exclusive  of 
the  right  of  the  landlord  to 
mine. 

427.  Liability   to   pay    compensa- 

tion in  case  of  exhaustion  of 
mines. 

428.  Obligation   to   drill   through 

land  worthless  for  oil  or 
gas. 

429.  Mortgages  of  mineral  lease- 

holds. 

430.  Perpetual  lease  of  ore  lands. 

431.  Options   to   drill   or  to   pay 

rent. 

432.  Provisions  for  the  forfeiture 

of  an  oil  or  gas  lease  for  the 
benefit  of  the  lessor  only. 

433.  Right  of  mining  tenants   to 

pollute  streams. 

434.  Liability    for    manufacturing 

coke  and  injuring  crops, 
etc.,  of  adjoining  premises. 

435.  As  to  whether  or  not  a  min- 


XX 


TABLE   OF    CONTENTS. 


ing  lease  Has  been  forfeited 

for  not  operating. 
436.  Rights  to  make  openings  to 

reach  coal. 
437-  Agreements  for  diligence  in 

drilling  and  working  for  oil, 

etc. 

438.  In  agreements  for  coal  leases 

time  is  of  the  essence  of  the 
contract. 

439.  Relief  against  forfeiture  of  an 

oil  and  gas  lease  for  non- 
payment of  rent. 

440.  Partnership  in  mineral  lease- 

holds. 

441.  Relief    against    forfeiture    of 

mining  leases. 

442.  A  lease  for  exploration  for 

oil  ceases  when  exploration 
finished. 

443.  Interest  on  royalties. 


444.  Tenant  will  not  be  compelled 

in  equity  to  test  land  for  oil 
or  gas  if  there  is  no  fraud. 

445.  Covenants    to    pay    royalties 

run  with  the  land. 

446.  When    lessee    to    follow    his 

own  judgment  in  sinking 
additional  wells. 

447.  The  meaning  of  the  phrase, 

"to  continue  so  long  as  oil 
or  gas  are  produced  in  pay- 
ing quantities." 

448.  Necessity     for.     having     oil 

leases  recorded. 

449.  Jurisdiction  in  equity  for  ac- 

count of  gas,  etc. 

450.  Rent  may  be  payable  in  oil 

or  gas. 

451.  Liability  of  assignee  of  an  oil 

or  gas  lease  for  the  payment 
of  royalties. 


CHAPTER  XXV. 

PRACTICAL    DIRECTIONS    IN    MATTERS    RELATING    TO    THE 
RENTING    OF    PROPERTY. 


PAGE  199. 


SECTION 

452.  Examination    of    the    prop- 

erty. 

453.  See   what  neighbors  can  do 

in  diminishing  the  value  of 
demised  premises. 

454.  Inquiries   of  landlord  before 

renting. 

455.  False  representations  by  les- 

see. 

456.  See    if   demised    premises    in 

the  city  of  Philadelphia  are 
liable  to  be  taken  for  public 
use. 

457.  Examination   of  the   title   of 

the  landlord. 


SECTION 

458.  Examination    as    to    encum- 

brances. 

459.  See  if  lease  can  be  destroyed 

by  an  orphans'  court  sale. 

460.  See  if  there  is  a  liability  for  a 

distraint  for  taxes. 

461.  Obtaining  rights  for  a  show 

case. 

462.  Obtaining     sign     rights     by 

tenant. 

463.  Provisions  in  case  of  fire  or 

other  casualty. 

464.  Directions  for  making  rents 

certain     for     distraint     and 
possession. 


TABLE    OP   CONTENTS. 


XXI 


SECTION 

465.  Directions     in     case     of    an 

underletting. 

466.  Giving   rights   to   tenants   to 

purchase. 

467.  Fixtures  of  tenant  to  be  pro- 

tected in  cases  of  renewed 
leases. 

468.  Making  a  penalty  to  be  paid 

as  rent. 

469.  Directions  in  taking  assign- 

ments of  leases. 

470.  Provisions  prohibiting  parol 

testimony  to  affect  written 
leases. 

471.  Restrictions  as  to  the  use  of 

demised  premises. 

472.  Making  rent  due  in  advance 

"by  occurrences  after  the 
lease. 

473.  Providing    against    the    lia- 

bility of  the  owner  for 
nuisances. 

474.  Prevention  of  defences  being 

waived  by  paying  rent  or 
other  action. 

475.  Prevention    of    the    termina- 

tion of  farm  leases  by  death 
of  tenant. 

476.  Provisions  for  amicable  eject- 

ments. 

477.  Providing  for  distraint  after 

removal  of  tenant. 

478.  Giving  sub-tenants  the  bene- 

fit of  the  exemption  law. 
4/9.  Providing  for  surety  in  cases 
of  extensions  of  lease. 

480.  Getting  the   consent   of   the 

surety  to  alter  lease. 

481.  Extension  of  right  to  termi- 

nate lease  to  assignees,  etc. 

482.  Danger    of    landlord    losing 

his  right  to  rent  by  the  non- 
performance  of  an  entire 
contract. 

483.  Cautions  in  preparing  agree- 


ments for  the  extension  of 
term  and  for  options. 

484.  Necessity  of  a  consideration 

for  an  agreement  to  change 
the  terms  of  a  lease. 

485.  Protecting  landlord  in  farm 

leases. 

486.  Making  the  payment  of  taxes, 

charges,  etc.,  as  rent. 

487.  Necessity  of  reading  leases. 

488.  Protecting      fire      insurance 

from  conduct  of  tenant. 

489.  Distinguishing     between     a 

lease  and  sale  in  granting 
mining  rights. 

490.  Necessity  of  a  particular  de- 

scription of  the  extent  of  a 
right  to  mine. 

491.  Ascertaining  if  any  old  min- 

ing leases  are  outstanding. 

492.  Protection  to   landlord  who 

reserves    the    surface    in    a 
lease  to  mine. 

493.  Binding     remainderman     in 

case  of  a  lease  by  tenant  for 
life. 

494.  Necessity    of    recording    oil 

lease  when  tenant  does  not 
take  possession. 

495.  Necessity    for    having    time 

fixed  for  delivery  of  land- 
lord's share  of  crops. 

496.  Protection      of     parties     in 

agreements  to  pay  for  taxes, 
charges,  assessments,  etc. 

497.  Dangers  in  using  clause  that 

landlord  may  change  terms 
of  lease. 

498.  In    case    of    doubtful    con- 

struction,   the    tenant     fa- 
vored. 

499.  Fixing  a  time  for  the  tenant 

to  perform  an  agreement  to 
make  improvements. 

500.  Protecting  landlord's  right  to 


XXII 


TABLE   OF   CONTENTS. 


tenant's  fixtures  at  the  end 
of  the  lease  from  levy,  etc. 

501.  If    an    assignee    assigns    his 

lease  and  retains  an  interest 
,  he  will  remain  liable. 

502.  Necessity  of  having  a  clause 

for  forfeiture  for  a  breach 
of  a  covenant  not  to  assign. 

503.  Guarding  against  the  breach 

of  trifling  covenants  giving 
the  right  to  recover  pos- 
session. 

504.  In  case  a  tenant  agrees  to  use 


SECTION 

or  not  to  use  demised  prem- 
ises for  a  certain  business  or 
purpose. 

505.  Danger    of    there    being    a 

breach  of  a  covenant  not  to 
assign  lease  by  taking  a 
partner. 

506.  Necessity  for  a  description  to 

locate  premises  in  leases  or 
amicable  ejectments. 
506*.  Giving  right  to  distrain  off 
the  demised  premises. 


CHAPTER  XXVI. 

FORMS. 
PAGE  238. 


SECTION 

507.  A  lease. 

508.  Farm  lease. 

509.  Farm  lease  on  shares. 

510.  Farm  lease  on  shares,  short 

form. 

511.  Covenant    that    lessee    shall 

fallow  the  land  and  mow 
but  once  a  year,  etc. 

512.  Covenant    that    lessee    may 

dispose  of  hay  and  straw. 

513.  Covenant  to  lay  down  part 

of  the  ground  with  clover, 
etc. 

514.  That  the  lessee  shall  use  the 

hay,     dung,     etc.,     on    the 
premises. 

515.  Fire   clause   for   farm   lease, 

No.  i. 

516.  Fire   clause   for   farm   lease, 

No.  2. 

517.  Fire  clause  for  a  dwelling. 

518.  Fire    clause    for    a    business 

property. 

519.  To    protect    against    assign- 

ment of  lease. 


SECTION 

520.  For  insertion  after  ejectment 

clause. 

521.  Giving    an    option    to    pur- 

chase. 

522.  Surety  for  tenant. 

523.  Assignment  of  lease. 

524.  Surrender  of  lease. 

525.  Distress  warrant. 

526.  Notice  of  distraint. 

527.  Affidavit    of    appraisers    and 

appraisement. 

528.  Consent  of  tenant  to  permit 

distrained     goods     to     re- 
main. 

529.  Notice  of  constable's  sale. 

530.  Claim  for  benefit  of  exemp- 

tion law. 

531.  Summons  of  appraisers. 

532.  Affidavit    of    appraisers    and 

election. 

533-  Appraisement    of    exempted 
goods. 

534.  Amicable    action    and   judg- 

ment in  ejectment. 

535.  Notice  to  quit  for  non-pay- 


TABLE    OF   CONTENTS. 


xxm 


SECTION 

ment  of  rent  under  act  of 
1830. 

536.  Complaint. 

537.  Summons. 

538.  Writ  of  restitution. 

539.  Record. 

540.  Notices    to    quit    at    end    of 

lease. 

541.  Complaint      for      possession 

under  act  of  1772. 

542.  Precept  to  the  sheriff. 

543.  Inquisition. 


SECTION 

544.  Record. 

545.  Summons     to     third     party 

claiming  title. 

546.  Complaint     for      possession 

under  act  of  1863. 

547.  Summons. 

548.  Record. 

549.  Writ  of  restitution. 

550.  Notice  in  case  of  lost  lease. 

551.  Second  notice. 

552.  Notice  when  tenant  is  unable 

to  answer  first  notice. 


THE  LAW  OF 
LANDLORD  AND  TENANT. 


CHAPTER  I. 


LEASES. 


PAGE  5. 


AGREEMENTS  FOR  A  LEASE. 


1.  Directions  for  preparing. 

2.  A  specific  performance  will  be 

decreed. 

3.  Damages  for  a  breach  of  an 

agreement  for  a  lease. 

4.  Where  a  tenant  under  a  parol 

agreement  for  a  lease  is  let 
into  possession  and  makes 
improvements. 

5.  A  lease  completed  by  an  actual 

entry  of  the  tenant. 

PAROL  EVIDENCE  AS  APPLIED  TO 
WRITTEN  AGREEMENTS. 

6.  Admissible   in   case   of  fraud, 

accident  or  mistake. 

7.  Admissible     in     some     other 

cases. 

8.  Agreement  in  writing  to  ex- 

clude verbal  understand- 
ings, etc. 

CONSTRUCTION  OF  LEASES. 

9.  Rules  for  construction. 


THE  NATURE  OF  A  LEASE. 

SECTION 

10.  Definition  of  a  lease. 

11.  Distinction    between    a    lease 

and  license. 

12.  Incorporeal    things    may    be 

rented. 

13.  Lease  of  a  farm  on  shares. 

IMPLIED  RENTING. 

14.  In  case  a  tenant  remains  with 

permission    and    pays    rent 
after  lease  expires. 

15.  Occupancy    under    an    agree- 

ment for  a  lease. 

1 6.  Occupancy     of     land     where 

there   is   no    agreement   to 
pay  rent. 

17.  Where  a  purchaser  at  sheriffs 

sale  elects  not  to  take  the 
tenant. 

18.  Where    a    tenant    remains    in 

possession  after  the  end  of 
his  lease  without  consent. 

19.  A  tenant  in  possession  under  a 

void  lease. 


LANDLORD    AND   TENANT. 


UNWRITTEN  LEASES. 

SECTION 

20.  Act  of  1772,  requiring  writing. 

DATE  OF  LEASE. 

21.  Mistake  or  omission  of  date. 

THE  NAMES  OF  THE  PARTIES. 

22.  Mistakes     or     omissions     of 

names. 

LEASES  BY  AGENTS. 

23.  The   manner   of   signing   and 

sealing  a  lease  by  an  agent. 

24.  Ratification  of  a  parol  lease 

void  under  the  statute  of 
frauds. 

25.  An  agent  should  have  sealed 

authority  to  make  a  sealed 
lease. 

26.  Agents  sealing  leases  without 

authority  personally  liable. 

27.  Leases  by  agents  not  under 

seal. 

28.  Parol  evidence   admissible  to 

prove  a  lease  not  under  seal 
as  principal's. 

29.  Agents  making  leases  in  their 

own  names  deprive  their 
principals  of  their  rights  as 
landlords. 

30.  When    agent    makes    a    lease 

without  disclosing  his  prin- 
cipal, tenant  cannot  deny 
that  the  agent  is  not  land- 
lord. 

31.  Agent    without    authority    in 

writing  may  make  lease  not 
over  three  years. 

32.  Personal  liability  of  agents  for 

their  contracts  when  they 
do  not  disclose  their  prin- 
cipals. 

LEASES  BY  AND  TO  PARTNERS. 

33.  Leases  by  partners  should  be 

sealed  by  all  the  partners. 


SECTION 

34.  Lease  by  one  partner  of  part- 

nership property. 

35.  Partners  taking  leases  in  their 

own    names    for    the    firm, 
hold  in  trust  for  the  firm. 

LEASES  BY  MINORS  AND  GUARD- 
IANS. 

36.  Minors'  leases. 

37.  Leases  by  guardians. 

LEASES    BY    AND    TO    MARRIED 
WOMEN. 

38.  Power  to  lease  under  act  of 

1893- 

39.  Leases  to  married  women. 

LEASES  BY  TENANTS  FOR  LIFE. 

40.  Lease      must      terminate      at 

death. 

LEASES  BY  AND  TO  CORPORATIONS 

41  May    make   leases    as    natural 
persons. 

42.  May  contract  without  writing 

43.  Leases    to    foreign    corpora- 

tions. 

44.  Officers  must  be  authorized  to 

lease. 

45.  Corporation     cannot     disable 

itself  from  performing  pub- 
lic duties  by  a  lease. 

46.  Corporate  seal  not  necessary 

to    hold    a    corporation    in 
assumpsit. 

47.  Corporation  may  ratify  agent's 

acts. 

LEASES  BY  TENANTS  IN  COMMON. 

48.  May   make  joint  or   separate 

leases. 
49  When  a  joint  lease  is  made  by 

tenants    in    common    they 

must  sue  jointly. 
50.  Liability  of  tenant  in  common 

to  pay  his  co-tenants  not  in 

possession. 


LEASES. 


LEASES   BY   TRUSTEES  AND    EX- 
ECUTORS. 

SECTION 

51.  Powers  of  trustees  limited  by 

the  trusts. 

52.  Administrator  cannot  lease. 

53.  Until  real  estate  is  sold  to  pay 

debts  the  rents  go  to  heirs 
or  devisees. 

54.  An  executor,  unless  he  is  made 

a  trustee  of  real  estate,  can- 
not lease  the  same. 

55.  In  case  executors  have  a  mere 

power  to  sell  real  estate. 

56.  In  case  of  a  trust  to  sell,  but 

not  to  rent. 

57.  Power  of  trustees  to  agree  to  a 

renewal  of  lease. 

58.  Case  of  personal  liability  of  an 

executrix  under  a  lease. 

59.  Assignee    for    the    benefit    of 

creditors  cannot  lease. 

DESCRIPTION  OF  PROPERTY 
RENTED. 

60.  Not  necessary  to  particularly 

describe  premises  in  a  lease. 

61.  Ambiguous    description    sup- 

plied by  evidence  outside  of 
the  lease. 

62.  List  of  furniture  should  be  an- 

nexed to  lease. 

63.  Intention    of   what   is   leased, 

from  actual  use. 

64.  Case  of  property  described  as 

on  the  wrong  corner. 

65.  Exceptions    and    reservations 

in  leases. 

66.  Impiled  grant  of  things  neces- 

sary for  the  use  of  property. 

67.  Authority  of  landlord  to  enter 

after  he  has  leased. 

TERM  OF  A  LEASE. 

68.  Estate  for  years. 

69.  Estate  at  will. 

70.  Tenant  from  year  to  year. 


SECTION 

71.  Tenancy  from  quarter  to  quar- 

ter, from  month  to  month, 
etc. 

72.  Perpetual  leases. 

73.  Lease  without  a  term  stated, 

74.  Tenancy  from  year  to  year  by 

express  agreement. 

75.  Term   of  tenancy  implied  by 

the  payment  of  rent. 

76.  Landlord  may   elect  to  treat 

tenant    holding    over    after 
lease  as  tenant  or  trespasser. 

77.  Tenant    by    the    month    may 

terminate    lease   at    end   of 
any  month. 

78.  A  lease  from  year  to  year,  at 

the  pleasure  of  the  parties,  a 
continuous  lease. 

79.  The  beginning  and  end  of  a 

lease. 

80.  Continuation   of  lease  at  op- 

tion of  tenant. 

81.  Agreements  for  extension   of 

terms  and  options. 

RENT. 

82.  In  what  payable. 

83.  What  rent  may  issue  out  of. 

84.  Interest  on  rent. 

85.  When  no  time   fixed  for  the 

payment  of  rent. 

86.  Rent  due  after  a  sale. 

87.  Custom  in  Philadelphia  to  ap- 

portion rent. 

88.  A  tenant  bound  by  his  cov- 

enant to  pay  rent,  although 
he  assigns  lease. 

89.  Rent  due  landlord  before  he 

dies   goes   to   his   executor 
as  personal  property. 

90.  Rent  due  after  death  of  lessor 

goes  to  his  heir  or  devisee. 

91.  An  agreement  of  tenant  to  pay 

assessments. 

92.  Notice    to    lessor   on    contin- 

gency releasing  lessee. 

93.  A  landlord  leaving  a  number 


LANDLORD   AND    TENANT. 


SECTION 

of  children,  each  child  is  en- 
titled to  his  or  her  share. 

94.  Apportionment    of    rent    in 

case  of  sale  of  reversion  by 
landlord  in  parts. 

95.  Rent     payable     in     advance 

upon  contingency. 

96.  Tenant  bound  by  his   cove- 

nant to  pay  rent  though 
property  is  burned. 

97.  Instances  of  losses  to  tenants 

for  the  want  of  an  exemp- 
tion from  the  payment  of 
rent  in  case  of  fire. 

98.  Rents  made  payable  to  tenant 

for  life  apportioned  under 
act  of  1834. 

99.  Rent  payable  in  grain,  etc., 

apportioned    under    act    of 

1834- 

100.  When    rent    is    payable    in 

grain,  it  is  not  due  until  de- 
livered. 

101.  Interest  of  landlord  in  share 

of  grain  cannot  be  taken  in 
execution  before  severance. 

102.  Good-will  of  demised  prem- 

ises. 

COVENANTS. 

103.  Covenants  running  with  the 

land. 

104.  Implied  covenants   run  with 

the  land. 

105.  When  covenants  run  with  the 

land. 

106.  Assignees    bound    by    cove- 

nants running  with  the  land. 

107.  Examples  of  covenants  run- 

ning with  the  land. 

108.  Covenant  to  pay  rent. 

109.  Covenants  not  to  assign   or 

underlet. 

no.  Are  construed  strictly. 
ill.  An  assignment  by  law  not  a 

breach. 


SECTION 

112.  Covenant  as  to  use  and  occu- 

pancy. 

113.  Landlord   not  bound  to   re- 

pair. 

114.  The  repairs  a  tenant  is  bound 

to  make. 

115.  Express   covenant   of  tenant 

to  repair. 

116.  Tenant  is  not  bound  by  his 

covenant  to  repair  injuries 
by  act  of  God  or  public 
enemies. 

117.  Tenant  cannot  charge  land- 

lord for  permanent  repairs 
made  without  his  authority. 

118.  Agreement  of  landlord  to  re- 

pair minor  to  that  of  tenant 
to  pay  rent. 

119.  Measure    of   damages    when 

landlord  breaks  his  agree- 
ment to  repair. 

120.  Tenant  not  relieved  from  loss 

in  business  during  repairs. 

121.  The  covenant  that  improve- 

ments shall  remain  should 
be  guarded  against  by  the 
tenant  as  dangerous. 

122.  Definition  of  the  word  "im- 

provement." 

123.  Covenant  of  landlord  to  sell 

to  tenant. 

124.  Covenant  for  re-entry. 

125.  Requisites  before  entry. 

126.  There  must  not  be  a  breach 

of  the  peace  in  making 
entry. 

127.  In  Pennsylvania  a  re-entry  is 

not  necessary  for  a  for- 
feiture. 

128.  Waiver  of  forfeiture. 

129.  Amicable  action  and  confes- 

sion of  judgment  in  eject- 
ment. 

130.  If  tenant  has  not  paid  his  rent 

punctually  he  must  be 
warned  before  entry  of  the 
judgment  for  non-payment. 


AGREEMENTS    FOR   A    LEASE. 


SECTION  . 

131.  For    a    purchaser    to    have 

benefit,  the  lease  should  be 
assigned. 

132.  No  appeal  to  Supreme  Court 

allowed. 

133.  Position  of  under-tenants. 

134.  Possession  by  those  holding 

paramount  title. 

135.  Implied    covenant    for    quiet 

possession. 

136.  Implied    covenant     to     pro- 

tect   tenant    against    para- 
mount claims. 

137.  Implied     covenant     to     use 

property  in  tenant-like  man- 
ner. 

138.  Covenants  as  to  farming. 

INABILITY  OF  TENANT  TO  DIS- 
PUTE THE  TITLE  OF  HIS 
LANDLORD. 


SECTION  ' 

139.  The  rule  and  its  operation. 

140.  Liability  of  tenant  to  forfeit 

his  lease. 

141.  Case   of   collusion  with  ten- 

ant. 

142.  Case  of  fraud  by  the  landlord. 

SEALING  AND  EXECUTION  OF 
LEASE,  STAMPS  AND  RE- 
CORDING. 

143.  Where  landlord  does  not  sign 

lease. 

144.  Where  tenant  does  not  sign 

lease. 
145  Kind  of  seal. 

146.  Witnesses  required. 

147.  Erasures      and       Interlinea- 

ations. 

148.  Stamps  on  leases. 

149.  Recording. 


AGREEMENTS  FOR  A  LEASE. 
Directions  for  Preparing. 

I.  It  is  sometimes  difficult  to  distinguish  between  a  lease 
and  an  agreement  for  a  lease.  The  intention  if  it  can  be  found 
will  govern.  In  case  of  any  doubt  the  language  will  be  con- 
sidered so  as  to  discover  indications  of  intent.  The  immedi- 
ate transfer  of  possession  and  the  immediate  payment  of  rent 
are  strong  indications  of  ,a  present  letting.  The  agreement 
for  a  lease  should  always  be  made  plain  so  that  there  can  be 
no  question  as  to  its  character.  The  agreement  for  a  lease 
should  contain  a  minute  of  all  the  important  terms  to  be  in- 
corporated therein,  as  otherwise  only  the  usual  covenants 
can  be  required.  What  are  usual  covenants  may  often  be  a 
question.  It  has  been  held  that  the  lessor  could  not,  as  a 
matter  of  right,  demand  a  covenant  of  the  lessee  not  to  as- 
sign or  underlet  without  license,  although  according  to  pres- 
ent practice  it  might  be  held  a  usual  covenant.  When  under 
an  agreement  of  lease,  a  lease  is  prepared  even  in  what  may 
be  considered,  in  certain  localities  as  the  usual  manner,  the 


6  LANDLORD    AND    TENANT. 

tenant  may  possibly  have  the  right  to  object  to  clauses  often 
used.  The  tenant  possibly  might  have  the  right  to  object  to 
an  amicable  ejectment  clause  for  instance.  If  trouble  over 
the  form  of  lease  is  anticipated,  the  proper  form  should  be 
selected  in  the  agreement. 

A  Specific  Performance  will  be  Decreed. 

2.  If  the  agreement  for  a  lease  is  in  writing  and  shows 
clearly  the  property  to  be  rented  and  all  necessary  terms,  an 
application  may  be  made  to  a  court  of  equity  for  a  specific 
performance.     If  a  person  contracts  to  sell  an  estate  or  to 
grant  a  lease,  a  purchaser  with  notice  of  such  contracts  is 
liable  to  perform  them.1 

Damages  for  a  Breach  of  an  Agreement  for  a  Lease. 

3.  A  defendant  agreed  to  lease  to  plaintiff  a  hotel  for  three 
years  from  the  succeeding  first  of  April.     Before  that  date, 
the  plaintiff  bought  many  articles  for  the  purpose  of  furnish- 
ing  the   hotel.     He   was   not   given   possession.     He   sold 
those  articles.      He  sold  his  house  and  personal  property 
therein  at  vendue.     When  he  failed  to  get  the  hotel  he  was 
without  a  home  and  was  compelled  to  board.     The  court  in- 
timated that  such  evidence  would  be  relevant  as  showing 
damage.2     Plaintiff  made  a  parol  contract  with  defendant  to 
lease  certain  premises  for  five  years.     The  defendant  refused 
to  take  them  at  the  time  agreed  upon  and  they  remained  un- 
tenanted  for  a  year,  and  plaintiff  brought  an  action  to  recover 
damages  therefor.     Held,  that  the  action  would  lie,  but,  as 
the  proposed  lease  was  for  over  three  years,  and  was  within 
the  statute  of  frauds,  the  damages  recovered  could  only  be 
those  which  arose  directly  from  the  breach,  but  that  the  rent 
agreed  upon  could  not  be  used  as  a  measure  of  damages,  for 
by  the  statute,  the  plaintiff  was  not  entitled  to  them.3     The 

1  Notes  to  Le  Neve  v.  Le  Neve,  2  Leading  Cases  in  Equity  (3  Am. 
Ed.),  US- 

2  Yeager  v.  Weaver,  64  Pa.  425. 

3  Sausser  v.  Steinmetz,  88  Pa.  324;  McCafferty  v.  Griswold,  09  Pa.  270. 


AGREEMENTS    FOR    A    LEASE.  7 

J 

rule  or  measure  of  damages  for  the  breach  of  a  contract  to 
lease  is  the  same  as  for  a  breach  of  a  contract  to  sell  land. 
A.  bought  of  the  tenant  an  unexpired  lease  upon  an  agree- 
ment with  the  landlord  that  he  would  renew  it.  The  land- 
lord and  remainderman  each  refused  to  renew,  and  the  land- 
lord died  before  the  expiration  of  the  lease.  Held,  that  the 
measure  of  damages  in  a  suit  by  A.,  against  the  landlord's  ad- 
ministrator was  the  price  paid  for  the  lease  and  its  interest, 
and  not  the  value  of  the  contract.  A  purchaser  is  not  en- 
titled to  any  compensation  for  the  fancied  goodness  of  his 
bargain  when  the  vendor  is  without  fraud  incapable  of  mak- 
ing title.4 

Where  a  Tenant  under  a  Parol  Agreement  for  a  Lease  is  Let  into 
Possession  and  makes  Improvements. 

4.  Even  when  there  is  no  writing  and  the  proposed  tenant 
is  let  into  possession  and  makes  valuable  improvements  upon 
the  faith  of  such  agreement,  a  court  of  equity  will  compel 
the  execution  of  the  lease  agreed  upon.5 

A  Lease  Completed  by  an  Actual  Entry  of  the  Tenant. 

5.  At  common  law  no  lease  for  years  was  looked  upon  as 
complete  until  an  actual  entry  by  the  lessee;  before  such 
entry  his  right  was  called  his  interest  in  the  term.     When  a 
lessor  fails  to  deliver  the  premises  acording  to  contract,  the 
lessee  has  two  remedies :  either  by  a  suit  against  the  lessor  on 
his  covenant,  or  he  may,  if  he  think  proper,  enter  and  recover 
the  term.     In  legal  contemplation  the  right  to  possession  is 
in  the  lessor  as  against  a  third  person  until  the  contract  is 
consummated  by  the  entry  of  the  lessee.     A  notice  by  a  les- 
sor in  possession  of  the  premises  that  the  lease  is  forfeited, 
is  substantially  a  declaration  that  he  will  refuse  to  give  the 
lessee  possession  of  the  land,  and  if  the  lessee  assents  to  this 
action,  and  accepts  a  new  lease  from  the  lessor,  he  rescinds 

4  McGlowry  v.  Croghan's  Adm.,  I  Grant,  307. 

5  Farley  v.  Stokes,  I  Parsons'  Eq.  Rep.  422. 


8  LANDLORD   AND   TENANT. 

the    former    lease    and    terminates    all    his    rights    there- 
under.6 

PAROL  EVIDENCE  AS  APPLIED  TO   WRITTEN 
AGREEMENTS. 

Admissible  in  Case  of  Fraud,  Accident  or  Mistake. 

6.  The  English  rule  that  parol  evidence  is  inadmissible  to 
vary  the  terms  of  a  written  instrument  has  been  said  not  to 
exist  in  this  state,  but  it  has  also  been  said  that  perhaps  it 
would  be  more  accurate  to  say  that  the  rule  has  been  relaxed, 
for  the  guards  which  the  court  has  thrown  around  the  modi- 
fication of  the  rule  have,  to  some  extent,  preserved  the  rule 
itself.  The  cases  in  this  state  in  which  parol  evidence  has 
been  allowed  to  contradict  or  vary  written  instruments  may 
be  classed  under  two  heads.  • 

First,  Where  there  was  fraud,  accident  or  mistake  in  the 
creation  of  the  instrument  itself,  and 

Second,  Where  there  has  been  an  attempt  to  make  a 
fraudulent  use  of  the  instrument  in  violation  of  a  promise  or 
agreement  made  at  the  time  the  instrument  was  signed,  and 
without  which  it  would  not  have  been  executed.7  Parol  evi- 
dence is  admissible  to  show  a  verbal  contemporaneous  agree- 
ment which  induced  the  execution  of  a  written  obligation, 
though  it  may  vary  or  change  the  terms  of  the  writing,8  and 
this  is  so,  although  such  oral  stipulation  was  not  omitted 
from  the  writing  through  fraud,  accident  or  mistake.9  The 
agreement  to  change  the  written  agreement  must  be  shown 
by  evidence  that  is  clear,  precise  and  indubitable,  and  this  can 
only  be  done  by  the  testimony  of  two  witnesses,  or  of  one 
witness,  corroborated  by  circumstances  equivalent  to  an- 
other.10 A  written  agreement  may  not  be  set  aside  on  the 

6  Gas  Co.  v.  Phila.  Co.,  158  Pa.  317;  Sennett  v.  Bucher,  3  P.  &  W. 
392. 

7  Assn.  v.  Hetzel,  103  Pa.  507;  Phillips  v.  Meily,  106  Pa.  536. 

8  Assn.  v.  Hetzel,  103  Pa.  507.        9  Ferguson  v.  Rafferty,  128  Pa.  337. 
10  Ferguson  v.  Rafferty,  128  Pa.  337;  Thomas  v.  Loose,  114  Pa.  35. 


PAROL    EVIDENCE.  9 

testimony  of  one  party,  contradicted  by  that  of  the  other 
party.  Yet  where  there  are  corroborating  circumstances,  or 
circumstances  from  which  inference  may  be  drawn,  corrobora- 
tive of  the  contemporaneous  parol  agreement  the  question 
should  be  submitted  to  the  jury.11 

Admissible  in  some  other  Cases. 

7.  Parol  evidence  is  admissible  to  explain  an  ambiguity  in 
a  deed  as  to  location  of  the  land  intended  to  be  conveyed,12 
and  to  explain  and  define  the  subject  of  a  written  agreement. 
Under  such  circumstances,  evidence  as  to  what  took  place 
between  the  parties  in  negotiating  the  lease  is  competent 
and  relevant.13     Where  an  agreement  in  writing  is  expressed 
in  short  and  incomplete  terms,  parol  evidence  is  admissible  to 
explain  that  which  is,  per  se,  unintelligible,  such  explanation 
not  being  inconsistent  with  the  written  terms.14     It  has  been 
held  that  the  rule  excluding  oral  testimony  is  applied  to 
simple  contracts  in  writing  to  the  same  extent  and  with  the 
same  exceptions  as  to  specialties  or  contracts  under  seal. 
To  ascertain  the  meaning  of  the  words,  parol  evidence  of  ex- 
traneous facts  and  circumstances  may  be  admitted.15     Parol 
evidence  is  admissible  to  show  that,  for  a  new  consideration, 
a  prior  contract  under  seal  was  changed.16 

Agreement  in  Writing  to  Exclude  Verbal  Understandings,  etc. 

8.  In  a  case  there  was  the  following  clause:  "It  is  agreed 
and  understood  that  in  writing  and  printing  this  paper  con- 
tains  the   full   and   entire   agreement   between   the   parties 
thereto,  and  no  verbal  understanding  is  of  any  force  and  ef- 
fect whatever,  and  it  is  not  to  be  held  binding."     The  justice 
remarked  in  this  case  that,  "this  at  least  warned  the  parties 

II  Smith  v.  Harvey,  40  W.  N.  C.  229.       12  Lulay  v.  Barnes,  172  Pa.  331. 

13  Boice  v.  Zimmerman,  39  W.  N.  C.  306. 

14  Leggoe  v.  Mayer,  39  W.  N.  C.  247. 

15  I  Greenleaf  on  Evidence,  4  Ed.,  §§  276,  282. 

16  Wilgus  v.  Whitehead,  89  Pa.  131;  McCauley  v.  Keller,  130  Pa.  53. 


10  LANDLORD    AND    TENANT. 

that  the  entire  agreement,  with  all  its  terms  and  stipulations, 
is  presumed  to  be  set  forth  in  the  instrument."  17 

CONSTRUCTION    OF   LEASES. 
Rules  for  Construction. 

9.  The  rule  of  construction  which  attaches  more  relative 
importance  to  the  written  than  to  the  printed  part  of  the  con- 
tract, is  often  a  very  useful  one,  and  is  recognized  in  many  of 
our  cases,  but  neither  this  rule  nor  the  rule  that  every  man's 
grant  is  to  be  taken  most  strongly  against  himself  relieves  the 
court  from  the  duty  of  reconciling  the  different  parts  of  the 
contract  if  it  can  reasonably  be  done,  and  where  the  interpre- 
tation and  effect  of  the  written  portion  are  themselves  in 
question,  the  other  portions  of  the  contract,  although  printed 
cannot  be  disregarded.  The  intention  of  the  parties  is  to  be 
ascertained  from  the  entire  instrument,  and  not  from  par- 
ticular words  or  phrases  without  reference  to  the  context, 
and  the  instrument  shall  operate  according  to  the  intention, 
unless  it  be  contrary  to  law.  A  deed  must  be  so  construed, 
if  possible,  that  no  part  shall  be  rejected.  The  object  of  all 
construction  is  to  ascertain  the  intent  of  the  parties,  and  it 
must  have  been  the  intent  to  have  some  meaning  to  every 
part.  It  never  could  be  a  man's  intent  to  contradict  himself, 
therefore  we  should  lean  to  such  a  construction  as  recon- 
ciles the  different  parts  and  rejects  a  conclusion  which  leads 
to  contradiction.18  A  mere  use  of  technical  words  or  phrases 
which  have  a  definite  legal  signification  cannot  be  allowed  to 
defeat  the  contrary  legal  intention  of  the  parties  to  a  con- 
tract if  that  intention  be  made  manifest  from  the  whole  con- 
tract. The  words  "demise,"  "lease,"  "mine-let,"  "lessors" 
and  "lessees,"  have  no  bearing  if  the  contract  is,  in  effect, 
not  a  lease.19.  Where  the  meaning  is  doubtful,  the  circum- 
stances at  the  making  of  the  instrument  and  the  subsequent 

17  Thomas  v.  Loose,  114  Pa.  35.  18  Lane  v.  Nelson,  167  Pa.  602. 

19  Coal  Co.  v.  Wright,  39  W.  N.  C.  146. 


THE    NATURE    OF    A    LEASE.  11 

acts  of  the  parties  are  to  be  considered  in  determining  the 
sense  of  the  words.20  Tenant  leased  an  academy  for  two 
•weeks.  He  wrote  to  the  company  that  he  was  unable  to  ful- 
fill his  contract  and  asked  to  have  the  lease  cancelled.  The 
company  claiming  to  act  as  defendant's  agent,  and  at  his  re- 
quest leased  the  academy  for  two  nights  of  the  tenant's  term, 
being  unable  to  dispose  of  the  remaining  portion ;  on  his  re- 
fi:sal  to  pay  suit  was  brought.  A  defence  was  set  up  that 
by  the  custom  of  the  theatrical  profession,  one  month's  no- 
tice of  an  inability  to  fulfill  a  lease  was  all  that  was  neces- 
sary to  cancel  it.  It  was  held  that  such  a  usage,  if  estab- 
ished,  would  be  binding,  if  the  parties  contracted  in  reference 
to  it.21 

THE  NATURE  OF  A  LEASE. 
Definition  of  a  Lease. 

10.  A  lease  is  a  contract  for  the  possession  and  profits  of 
lands  and  tenements  on  the  one  side,  and  a  recompense  of 
rent  or  other  income  on  the  other.     It  is  essential  that  there 
must  be  a  lessor  able  to  grant  the  land,  a  lessee  capable  of 
accepting  the  grant,  and  a  subject-matter  capable  of  being 
granted.     It  is  the  ordinary  incident  of  every  lease  that  the 
lessee  shall  pay  a  rent  or  consideration  to  the  lessor  for  the 
use  of  the  premises  granted,  but  it  is  immaterial  whether  the 
rent  is  paid  in  money,  or  service,  or  in  any  stipulated  article, 
such  as  grain  or  ore.22 

Distinction  Between  a  Lease  and  License. 

11.  A  mere  permission  to  occupy  certain  premises  without 
pay,  on  condition  of  leaving  whenever  required  by  the  owner 
to  do  so,  does,  not  create  a  tenancy ;  for  rent  is  the  essence  of 
a  lease.     Independent  of  the  idea  of  a  contract,  a  lease  also 

20  Lane  v.  Nelson,  167  Pa.  602;    Berridge  v.  Glassey,  112  Pa.  442. 

21  Academy  v.  Birt,  26  W.  N.  C.  351. 

22  Kunkle  v.  Rifle  Club,  10  Phila.  R.  52;  2  Addison  on  Contracts,  §  675. 


12  LANDLORD   AND   TENANT. 

possesses  the  property  of  p_assing  an  interest,  and  partakes  of 
the  nature  of  an  estate  which,  when  limited  to  a  certain  period 
for  the  enjoyment  of  land,  becomes  a  term  for  years.23 

Incorporeal  Things  may  be  Rented. 

12.  A  way,  etc.,  may  be  rented.24 

Lease  of  a  Farm  on  Shares. 

13.  Jaquette  agreed  to  farm  the  land  of  Brown,  for  which 
he  was  to  have  one-half  the  proceeds ;  each  party  furnishing 
one-half  the  seed,  stock,  poultry,  hogs,  etc.,     Jaquette  was  to 
find  all  the  farming  implements,  the  working  stock,  and  all 
the  requisite  labor,  and  pay  the  road  tax  and  one-half  of  all 
other  taxes.     He  was  also  to  submit  a  statement  every  three 
months,  and  make  settlement.     Held,  that   this   agreement 
was  a  lease  of  the  farm  on  shares  and  not  a  partnership.    That 
the  landlord  had  the  right  to  distrain.     That  the  tenant  was 
not  a  mere  cropper  or  a  servant  working  land  for  produce. 
That  the  products  of  the  farm  could  be  reduced  to  certainty.25 
Where  a  contract  for  hiring  provides  for  a  certain  money 
compensation  per  day  jto  the  employe  and  a  house  to  live  in, 
the  employe  has  no  distinct  right  of  possession  as  the  house 
he   occupies   is  that   of  the   employer,   and   it  cannot   sur- 
vive the  living  to  which  it  is  incidental,  or  under  which  it  is 
part  of  the  contract  price  for  the  service  rendered.     It  is  not 
necessary  that  the  occupation  of  a  house  or  apartments  should 
be  a  necessary  incident  to  the  service  to  be  performed  in 
order  that  the  right  to  continue  in  possession  should  end  with 
the  service.     It  is  enough  if  such  occupation  is  convenient 
for  the  purposes  of  the  service  and  was  obtained  by  reason  of 
the  contract  of  hiring.26 

23  Taylor  on  Landlord  and  Tenant,  §  14. 

24  Thomas  v.  Railroad,  9  W.  N.  C.  65. 

25  Brown  v.  Jaquette,  94  Pa.  113.        26  Bowman  r>.  Bradley,  151  Pa.  351. 


IMPLIED   RENTING.  13 

IMPLIED  RENTING. 

In  Case  a  Tenant  Remains  with  Permission  and  Pays  Bent  after 
Lease  Expires. 

14.  When  a  tenant  for  a  year  or  for  any  term  over  a  year, 
with  the  permission  of  the  landlord,  remains  in  possession  of 
the  demised  premises  after  the  expiration  of  the  term,  and 
pays  rent,  the  law  will  imply  a  further  renting  from  year  to 
year,  for  the  same  rent  and  subject  to  all  the  agreements  in 
the  original  lease  as  are  applicable  to  the  new  situation,  but 
not  subject  to  agreements  as  to  matters  intended  only  to  be 
performed  during  the  original  lease.27 

Occupancy  under  an  Agreement  for  a  Lease. 

15.  If  a  party  occupy  and  pay  rent  under  an  agreement  for 
a  term,  then,  although  such  agreement  may  not  operate  to 
create  the  proposed  term,  either  in  consequence  of  its  not 
amounting  to  a  lease  or  not  being  a  good  execution  of  a 
power,  yet  the  party  so  occupying  and  paying  rent  is  con- 
sidered as  holding  upon  all  the  terms  of  the  agreement  not 
inconsistent  with  a  tenancy  from  year  to  year,  such  as  an 
obligation  to  repair,  and  the  like.     If  rent  is  paid  with  refer- 
ence to  a  yearly  tenancy,  the  implied  letting  will  be  from 
year  to  year.     When,  however,  the  rent  is  paid  monthly,  the 
tenancy  will,  it  seems,  be  presumed  to  be  from  month  to 
month,  as  against  a  party  who  has  refused  to  recognize  the 
validity  of  the  oral  demise  or  accept  a  written  lease  in  con- 
formity with  its  terms.28 

Occupancy  of  Land  where  there  is  no  Agreement  to  Pay  Rent. 

1 6.  If  a  person  occupies  land  by  the  permission  of  another, 
the  law  will  presume  a  promise  to  pay  a  reasonable  compen- 
sation, though  none  has  been  expressly  fixed.     In  such  cases 
the  contract  is  deduced  from  the  assent  of  the  owner  and 

27  Phillips  v.  Monges,  4  Whar.  R.  225;   Diller  v.  Roberts,  13  S.  &  R.  59. 

28  Notes  to  Doe  v.  Bell,  and  Clayton  v.  Blakey,  I  Smith's  Leading 
Cases,  186,  189,  192. 


14  ,  LANDLORD    AND    TENANT. 

the  action  of  the  occupant  under  it.  But  there  is  no  basis  for 
any  implication  of  a  contract  to  pay  for  the  use  of  land  where 
an  occupant  enters  without  any  understanding  with  the 
owner  and  without  his  knowledge.29  The  compensation  is 
not  rent,  but  an  equivalent  for  rent,  and  it  can  be  shown  that 
the  occupation  has  not  been  beneficial.30 

Where  a  Purchaser  at  Sheriff's  Sale  Elects  not  to  take  the  Tenaii : 

17.  When  a  purchaser  at  sheriff's  sale  elects  to  disaffirm  a 
lease,  he  can  claim  for  use  and  occupation  until  he  obtains 
possession.31 

Where  a  Tenant  Remains  in  Possession  after  the  End  of  his  Leas ' 
without  Consent. 

1 8.  A  tenant  holding  over  after  his  term,  without  permis- 
sion of  his  landlord,  is  liable  for  the  use  and  occupation.32 

A  Tenant  in  Possession  under  a  Void  Lease. 

19.  A  tenant  who  is  in  possession  under  a  void  lease,  or 
who  is  let  into  possession  before  the  execution  of  the  lease,  is 
bound"  to  pay  for  such  occupancy.33 

UNWRITTEN   LEASES. 
Act  of  1772,  Requiring  Writing. 

20.  In  Pennsylvania  all  leases  not  put  into  writing  and 
signed  by  the  parties  making  the  same,  or  their  agents,  there- 
unto lawfully  authorized  by  writing,  have  only  the  force  and 
effect  of  leases  from  year  to  year,  except  all  leases  not  ex- 
ceeding the  term  of  three  years  from  the  making  thereof.34 
The  void  lease  will  regulate  the  terms  of  the  substituted  in- 
terest.85   A  parol  agreement  between  a  landlord  and  a  tenant 
in  possession  of  the  premises  for  a  lease  of  the  same  for  a 

29  Brolasky  v.  Ferguson,  48  Pa.  434;  Marlatt  v.  Marlatt,  4  Pennypacker 
R.  QI. 

30  Kline  v.  Jacobs,  68  Pa.  57.        31  Assn.  v.  Frisdjen,  5  W.  N.  C.  318. 

32  Bush  v.  Oil  Co.,  5  W.  N.  C.  143. 

33  Stover  v.  Cadwallader,  2  Pennypacker  R.   117. 

34  Act  of  March  21,   1772.        35  Roberts'  Dig.  317. 


DATE   OF   LEASE.  15 

term  of  three  years,  commencing  one  year  after  the  date  of 
the  agreement,  is  void  under  the  statute  of  frauds.  The  facts 
that  the  tenant  was  in  possession,  and  that  he  made  certain 
improvements  in  consideration  of  said  lease,  do  not  create 
a  sufficient  equity  to  take  the  case  out  of  the  operation  of  the 
statute.  Counsel  argue'd,  that  to  take  a  parol  contract  out 
of  the  statute  of  frauds,  possession  must  be  taken  in  pursu- 
ance thereof,  and  that  a  previous  and  continuing  possession 
will  not  have  that  effect.36  The  decedent  was  in  possession 
of  the  premises  under  a  void  lease  for  ten  years.  Under  the 
statute  of  frauds  this  is  to  be  considered  a  tenancy  at  will 
only ;  underthe  decisions  in  this  state,  a  tenancy  at  will  is  to  be 
considered  as  a  tenancy  from  year  to  year.37  A  provision  in 
a  written  lease  for  five  years,  for  an  extension  for  a  further 
period  of  five  years  on  the  same  terms,  at  the  option  of  the 
lessee,  by  notice  in  writing  at  least  three  months  before  the 
expiration  of  the  first  term,  is  not  within  the  statute  of  frauds, 
as  the  term  embraced  in  the  renewal  is  created  and  defined 
by  the  lease  itself.  Under  a  lease  of  real  estate  for  five  years, 
executed  under  seal  by  the  lessee  alone,  the  latter  entered  and 
remained  in  possession.  By  a  separate  writing  under  seal, 
attached  to  the  lease,  the  defendant  became  responsible  for 
the  lessee's  covenants,  for  the  full  time  in  which  the  latter 
might  retain  possession  thereunder.  In  such  case,  the  legal 
effect  of  the  lessor's  omission  to  sign  the  lease,  under  the 
statute  of  frauds,  had  no  bearing  on  the  defendant's  respon- 
sibility ;  for  under  the  terms  of  his  own  contract,  the  defend- 
ant was  liable  as  surety,  so  long  as  the  lessee  remained  in  pos- 
session of  the  premises  under  the  terms  of  the  lease.38 

DATE  OF  LEASE. 
Mistake  or  Omission  of  Date. 

21.  The  date  of  a  lease  is  no  part  of  its  substance,  and  need 
not,  in  fact,  be  inserted ;  and,  therefore,  a  mistake  in  the  date 

36  Whiting  v.  Opera  Co.,  88  Pa.  100;  Wheeler  v.  Conrad,  6  Phila.  209. 

37  Hey  t/.McGrath,  81^  Pa.  310.        38  Duffee  v.  Mansfield,  141  Pa.  507. 


16  LANDLORD    AND   TENANT. 

will  not  vitiate  the  instrument.  If  there  is  no  date  or  an  im- 
possible one  the  term  will  be  considered  as  commencing  from 
the  delivery  of  the  deed;  unless  some  particular  time  for  its 
commencement  is  therein  specified.  It  is  competent  for 
either  party  to  show  that  the  delivery  took  place  on  a  day 
different  from  that  of  the  date.39 

THE  NAMES   OF  THE   PARTIES. 
Mistakes  or  Omissions  of  Names. 

22.  An  initial  between  the  Christian  and  surname  is  no  part 
of  either.40     The  omission  or  insertion  of  the  middle  name  is 
not  required  but  it  is  better  to  have  the  correct  middle  names 
in  a  lease,  as  they  are  requisites  in  a  judgment  upon  a  lease,  to 
give  proper  notice,  and  their  omission  might  result  in  an  er- 
roneous judgment.     A  mistake  in  the  spelling  of  the  name 
not  materially  different  from  the  true  name  will  not  invalidate 
the  instrument.41 

LEASES   BY  AGENTS. 
The  Manner  of  Signing  and  Sealing  a  Lease  by  an  Agent. 

23.  If  an  agent  sign  and  seal  a  deed  in  his  own  name,  it 
does  not  bind  his  principal,  though  it  purports  to  be  made 
between  the  other  party  and  the  principal  by  such  agent ;  nor 
will  the  confirmation  by  the  principal,  short  of  sealing  the 
deed,  render  him  liable  on  it;  and  as  the  one  party  is  not 
bound,  so  neither  is  the  other.42     A  lease  by  an  agent  should 
be  in  this  way,  viz. :  A.  B.,  by  C.  D.,  his  attorney,  and  con- 
clude, In  witness  whereof  A.  B.,  by  his  attorney,  C.  D.,  has 
hereunto  set  his  hand  and  seal,  etc. ;  and  the  agent  in  execut- 
ing such  a  lease  should  sign  the  name  A.  B.,  his  principal, 
opposite  a  seal  and  under  the  same  sign  his  own  name  op- 

39  Taylor's  Landlord  and  Tenant,  §  148. 

40  Bratton  v.  Seymour,  4  W.  329;  Paul  v.  Johnson,  9  Phila.  32. 

41  Taylor's  Landlord  and  Tenant,  §  149. 
•  42  Bellas  v.  Hays,  5  S.  &  R.  427. 


LEASE    BY    AGENTS.  17 

posite  another  seal  as  follows:  By  his  attorney,  C.  D.43  A 
lease  was  signed  by  the  agent  of  the  owners,  merely  as  agent, 
but  reciting  the  names  of  the  owners  as  his  principals,  and 
purporting  to  be  a  grant,  not  in  his  own  right,  but  as  agent. 
Held  to  be  good.44 

Ratification  of  a  Farol  Lease  Void  under  the  Statute  of  Frauds. 

24.  A  lease  of  land  in  writing  for  seven  years,  by  an  au- 
thorized agent,  may  be  ratified  by  the  owner;  but  to  avoid 
the  effects  of  the  statute  of  frauds  and  perjuries,  the  ratifica- 
tion must  be  in  writing;  a  parol  ratification  gives  to  the 
tenant  an  estate  from  year  to  year.45 

An  Agent  should  have  Sealed  Authority  to  make  a  Sealed  Lease. 

25.  An  agent,  in  order  to  seal  a  deed,  must  have  sealed 
authority  from  his  principal.     For  example,  an  agreement 
was  signed  and  sealed  "Garner,"  and  also  "William  Irwin 
(seal),  by  agent  McH.,"  and  it  was  held  that,  there  was  no 
sealed  authority  by  Irwin  to  the  agent,  nor  did  he  adopt  the 
seal  or  ratify  it  by  a  sealed  instrument.     Held,  that  the  deed 
was  not  Irwin's  deed  and  none  of  the  covenants  his  cove- 
nants, but  that  if  Irwin  accepted  the  grant  he  became  bound 
if  he  had  signed  and  sealed  the  instrument.46 

Agents  Sealing  Leases  without  Authority  Personally  Liable. 

26.  Agents  run  risk  in  signing  and  sealing  deeds  without 
placing  the  names  and  seals  of  their  principals ;  for  instance, 
agents  contracted  for  the  benefit  of  a  company,  yet  they  did 
it  under  their  own  individual  seals,  and  hence  the  agents  be- 
came individually  liable.47 

43  Taylor's  Landlord  and  Tenant,  §  139 

44  Duncan  v.  Hartman,  143  Pa.  595. 

45  McDowell  v.  Simpson,  3  Watts,  129. 

46  Grove  v.  Hodges,  55  Pa.  504. 

47  Qu'gley  v.  De  Haas,  82  Pa.  267;  Kroeger  v.  Pitcairn,  loo  Pa.  311. 

2 


18  LANDLORD   AND   TENANT. 

Leases  by  Agents  not  under  Seal. 

27.  A  written  contract  not  under  seal  is  binding  on  the 
principal,  in  whatever  form  made  or  executed,  if  the  princi- 
pal's name  appear  in  it,  and  the  intention  to  bind  him  be  ap- 
parent.    A  verbal  contract  is  binding  on  the  principal  if  his 
name  is  disclosed,  and  the  person  making  it  contracts  as  his 
agent,  and  on  his  behalf.48 

Farol   Evidence   Admissible   to   Prove   a   Lease   not   under   Seal   as 
Principal's. 

28.  Parol  evidence  is  admissible  to  prove  that  an  agree- 
ment in  writing,  not  under  seal,  between  A.  and  B.  was  in 
fact  by  A.  as  agent  of  C.,  and  for  his  benefit.49 

Agents   making  Leases   in   their   own  Names   Deprive   their   Prin- 
cipals of  their  Bights  as  Landlords. 

29.  Agents  made  a  lease  in  their  own  names  throughout 
the  lease,  but  added  the  word  "agents"  to  their  signatures  to 
the  lease.     The  principal  distrained  for  rent,  and  he  was  held 
liable  for  a  trespass,  because  he  was  not  to  be  treated  as  land- 
lord.    The  lease  does  not  appear  to  have  been  sealed.50 

When  Agent  makes  a  Lease  without  Disclosing  his  Principal,  Tenant 
Cannot  Deny  that  the  Agent  is  not  Landlord. 

30.  "Andrew  M.  Martin,  agent,"  by  written  lease  rented  to 
H.  an  office  and  in  proceedings  of   the  agent,  the    tenant 
wanted  to  prove  that  Martin  was  agent,  but  that  his  authority 
had  been  revoked.     He  was  not  permitted  to  do  so  and  to 
deny  his  landlord's  title.     It  was  held,  that  it  was  Martin  who 
let  the  premises.     The  relation  of  landlord  and  tenant  by  the 
terms  of  the  lease  was  exclusively  between  them.     Martin 
simply  describing  himself  as  agent,  without  disclosing  prin- 
cipals, did  not  place  him  in  the  position  as  agent.51 

48  I  Am.  Leading  Cases,  613. 

49  Gilpin  v.  Howell,  5  Pa.  41;  Bank  v.  Smith,  3  Brewster  R.  9. 

50  Seyfert  v.  Bean,  83  Pa.  450.        51  Holt  v.  Martin,  51  Pa.  499. 


LEASE   BY   AND   TO   PARTNERS.  10 

Agent  without  Authority  in   Writing   may  make   Lease  not   over 
Three  Years. 

31.  An  agent  need  not  be  constituted  by  writing  to  make 
leases  not  under  seal  for  a  term  not  over  three  years.52 

Personal  Liability  of  Agents  for  their  Contracts  when  they  do  not 
Disclose  their  Principals. 

32.  An  agent  who  contracts  on  behalf  of  an  undisclosed 
principal,  is  personally  bound.63     A  lease  was  signed  by  the 
agent   of  the  owners,   merely  as  agent,   but   reciting   the 
names  of  the  owners  as  principals,  and  purporting  to  be  a 
grant  not  in  his  own  right,  but  as  agent.     The  informal  ex- 
ecution would  not  leave  the  grantee  in  possession  as  a  tres- 
passer.    It  is  not  at  all  analogous  to  Basset  v.  Hawke,54  and 
similar  cases  where  the  instrument  purported  to  grant  the  at- 
torney's own  estate  only  without  connecting  his  principal 
at  all.55     A  lessee,  in  the  face  of  the  terms  of  a  written  lease 
and  an  assignment  thereof,  cannot  relieve  himself  of  personal 
liability  by  showing  by  parol  evidence  that  he  was  acting  as 
agent  of  a  proposed  corporation  without  showing  that  the 
execution  of  the  lease  was  induced  by  fraud,  misrepresenta- 
tion, etc.56 

LEASES    BY    AND    TO    PARTNERS. 
Leases  by  Partners  should  be  Sealed  by  All  the  Partners. 

33.  One  partner  cannot  bind  his  co-partner  by  a  deed, 
though  given  in  a  transaction  in  the  course  of  the  business 
of  the  firm  and  the  benefit  be  received  by  the  firm ;  57  he  can- 
not, without  authority  of  his  co-partner,  give  a  sealed  lease 
of  the  partnership  property.58     A  partner  may  bind  his  co- 
partner by  contract  under  seal  if  the  latter  previously  assent 
or  subsequently  ratify  it,  and  this  may  be  shown  by  parol.53 

52  Miles  v.  Cook,  I  Grant,  58.        53  Beymer  v.  Bonsall,  2  W.  N.  C.  229. 

54  Basset  v.  Hawke,  114  Pa.  502. 

55  Duncan  v.  Hartman,  143  Pa.  595. 

56  Sanders  v.  Sharp,  153  Pa.  555.        57  Hart  v,  Withers,  i  P.  &  W.  285. 

58  Snyder  v.  May,  19  Pa.  235;  Whitaker  v.  Richards,  134  Pa.  191. 

59  Bond  v.  Aitkin,  6  W.  &  S.  165. 


20  LANDLOKD    AND    TENANT. 

Lease  by  One  Partner  of  Partnership  Property. 

34.  If  a  lot  is  partnership  property  and  used  as  such,  a 
lease  though  made  by  one  partner  alone  would  inure  to  the 
benefit  of  the  firm,  for  partners  are  the  agents  of  each  other  in 
partnership  transactions,  and  when  real  estate  is  brought  into 
partnership  business  it  is  treated  in  equity  as  personal  estate, 
and  a  lease  of  it  by  one  partner  is  as  much  a  partnership 
transaction  as  a  sale  of  partnership  goods  by  him  would  be.60 

Partners  taking  Leases  in  their  own  Names  for  the  Firm,  Hold  in 
Trust  for  the  Firm. 

35.  If  a  partner  takes  a  lease  of  lands  in  his  own  name  for 
the  purposes  of  the  partnership,  he  will  be  considered  in  equity 
as  a  trustee  of  such  lease  for  himself  and  co-partner.61 

If  one  partner  obtains  in  his  own  name,  either  during  the 
partnership  or  before  its  assets  have  been  sold,  a  renewal  of  a, 
lease  of  the  partnership  property,  he  will  not  be  allowed  to 
treat  this  renewed  lease  as  his  own,  and  as  one  in  which  his 
co-partners  have  no  interest.62 

LEASES  BY  MINORS  AND  GUARDIANS. 
Minors'  Leases. 

36.  If  a  minor  leases  lands,  the  lease  is  not  void,  it  is  only 
voidable.     It  may  be  avoided  by  the  minor  when  he  comes 
of  age,  or  by  his  heir  if  he  die  in  his  minority.63     Where  an 
infant  lessee,  after  reaching  full  age,  holds  over,  he  becomes 
liable  for  past  and  future  rent  under  a  lease  made  during 
minority.64 

Leases  by  Guardians. 

37.  A  guardian  of  the  estate  may  make  leases  and  may  sue 
and  distrain  for  rent.68 

60  Moderwell  v.  Mullison,  21  Pa.  257.       61  Collyer  on  Partnership,  160. 
62  Lindley  on  Partnership.  574.        63  2  Milliard  on  Contracts,  130. 

64  Harris  v.  Knowles,  26  W.  N.  C.  249. 

65  Carskadden  v.  M'Ghee,  7  W.  &  S.  140.  ^ 


LEASE   BY   AND   TO   CORPORATIONS.  21 

LEASES  BY  AND  TO  MARRIED  WOMEN. 
Power  to  Lease  under  Act  of  1893. 

38.  By  the  act  of  assembly  of  June  8,  1893,  a  married 
woman  has  the  same  right  and  power  as  an  unmarried  per- 
son to  lease  her  real  estate,  and  may  make  any  contract  in 
writing  or  otherwise  which  may  be  necessary,  appropriate, 
convenient  or  advantageous  to  the  exercise  or  enjoyment  of 
her  right  and  power  to  lease. 

Leases  to  Married  Women. 

39.  A  married  woman  can  become  lessee.66 

LEASES   BY  TENANTS   FOR   LIFE. 
Lease  must  Terminate  at  Death. 

40.  A  tenant  for  life  cannot  make  a  lease  to  extend  beyond 
the  term  of  his  own  life.     When  the  remainderman  or  rever- 
sioner  joins  with  the  tenant  for  life  in  making  a  lease,  it  is 
good,  and  is  considered  during  the  life  of  the  tenant  lor  me 
as  his  lease,  and  the  confirmation  of  the  remainderman  or  re- 
versioner;  and  after  the  death  of  the  tenant  for  life  it  is  taken 
to  be  the  lease  of  the  remainderman  or  reversioner.67 

LEASES    BY   AND   TO    CORPORATIONS. 
Kay  make  Leases  as  Natural  Persons. 

41.  When  a  corporation  is  acting  within  the  scope  of  the 
legitimate  purposes  of  its  institution,  all  parol  contracts  made 
by  its  authorized  agents  are  binding.     Within  the  sphere  of 
its  proper  functions  it  may  contract  pretty  much  as  a  natural 
person  may.68 

May  Contract  without  Writing. 

42.  Corporations  may  contract  otherwise  than  in  writing.69 

66  Lloyd  v.  Underkofler,  13  Phila.  160.        67  6  Coke,  141. 

68  Hamilton  v.  Insurance  Co.,  5  Pa.  339. 

69  i  Hilliard  on  Contracts,  558. 


22  LANDLORD    AND    TENANT. 

Leases  to  Foreign  Corporations. 

43.  A  foreign  corporation  may  lawfully  take  a  lease  of  an 
office  in  this  state  in  which  to  transact  business.     Though 
no  corporation  can  hold  real  estate  beyond  the  authority  con- 
ferred in  its  charter,  the  principle  does  not  extend  to  a  lease. 
A  foreigner  may  lease  a  house  to  shelter  himself  and  family, 
although  he  be  prohibited  from  holding  real  estate.70 

Officers  must  be  Authorized  to  Lease. 

44.  A  lease  made  by  certain  officers  of  a  corporation  un- 
authorized so  to  do,  will  be  declared  invalid.     Mere  silence 
will  not  be  construed  into  acquiescence.71     In  case  of  a  lease 
of  importance  it  would  be  well  to  see  that  the  directors  in  a 
regular  way  authorized  the  lease. 

Corporation  Cannot  Disable  Itself  from  Performing  Public  Duties  by 
a  Lease. 

45.  Railroad  company  cannot  lease  its  rolling  stock,  etc., 
without  the  consent  of  the  state.72 

Corporate  Seal  Not  Necessary  to  Hold  a  Corporation  in  Assumpsit. 

46.  Assumpsit  lies  for  rent  upon  a  lease  by  a  corporation, 
executed  without  its  seal.73 

Corporation  may  Ratify  Agents'  Acts. 

47.  The  acceptance  by  a  corporation,  of  the  contract  of  its 
officer,  and  action  under  it,  is  a  ratification  of  the  authority  of 
the  officer  in  making  the  contract.74 


70  Steamboat  Co.  v.  McCutchen,  13  Pa.  13. 

71  Oil  Co.  v.  Railroad,  12  Phila.  374. 

72  Thomas  v.  Railroad,  9  W.  N.  C.  65. 

73  Morrison  v.  Beirer,  2  W.  &  S.  81. 

74  Goldbeck  v.  Bank,  147  Pa.  267. 


LEASES   BY    TRUSTEES    AND    EXECUTORS.     ^    ^  ^  23 

LEASES   BY   TENANTS   IN    COMMON. 
May  make  Joint  or  Separate  Leases. 

48.  Tenants  in  common  may  make  separate  leases  for  their 
respective  interests  for  separate  rents,  or  they  may  all  join  in 
one  lease,  with  one  render  of  the  entire  rent  to  the  lessors 
simply,  in  which  case  they  may  sue  jointly.75 

When  a  Joint  Lease  is  made  by  Tenants  in  Common  they  must  Sue 
Jointly. 

49.  Land  belonging  to  eleven  heirs  of  a  decedent  was 
leased  by  seven  of  them.     The  agreement  was  not  to  pay  to 
each  lessee  his  individual  part,  but  to  them  all  a  gross  sum, 
and  it  was  held  that,  the  lease  being  by  the  lessors  jointly, 
one  could  not  recover  a  fractional  part  of  the  rent.76 

Liability  of  Tenant  in  Common  to  Pay  his  Co-Tenants  not  in  Pos- 
session. 

50.  It  was  held  that,  in  the  absence  of  an  express  contract, 
one  tenant  in  common  could  not  recover  from  another  for 
the  use  and  occupancy  of  the  common  land,  either  at  law  or 
in  equity.77     To  remedy  the  unjust  effects  of  this  law,  the  act 
of  June  24,  1895,  was  passed,  whereby  tenants  in  common, 
not  in  possession,  can  recover  from  their  co-tenants  in  pos- 
session, their  proportionate  parts  of  the  rental  value  of  the 
real  estate,  and  in  cases  of  partition  the  parties  in  possession 
are  liable  to  have  deducted  from  their  distributive  shares  the 
rental  value  to  which  their  co-tenants  are  entitled. 

LEASES  BY  TRUSTEES  AND  EXECUTORS. 
Powers  of  Trustees  Limited  by  the  Trusts. 

51.  Trustees  of  lands,  being  the  owners  of  the  legal  estate, 
may  grant  leases  which  cannot  be  impeached,  so  long  as  they 
are  justified  by  the  quantity  of  the  estate  they  possess.78 

75  Taylor's  Landlord  and  Tenant,  §§  115,  116. 

76  Marys  v.  Anderson,  24  Pa.  272. 

?7  Norris  v.  Gould,  15  W.  N.  C.  187. 

78  Taylor's  Landlord  and  Tenant,  §  130.  _, 


24  LANDLORD    AND    TENANT. 

Administrator  Cannot  Lease. 

52.  An  administrator  has  nothing  to  do  with  real  estate,  or 
the  renting  of  the  real  estate,  or  the  collection  of  rents. 

Until  Real  Estate  is  Sold  to  Pay  Debts  the  Bents  go  to  Heirs  or 
Devisees. 

53.  Until  a  sale  of  real  estate  of  an  intestate  for  the  pay- 
ment of  debts,  it  belongs  to  the  heirs  or  devisees,  who  are  en- 
titled to  the  rents  although  the  estate  may  be  insolvent.79 

An  Executor,  unless  he  is  made  a  Trustee  of  Real  Estate,  Cannot 
Lease  the  Same. 

54.  An  executor  of  a  will  is  in  the  same  position  as  an  ad- 
ministrator as  to  real  estate,  unless  in  some  way  he  is  made  a 
testamentary  trustee  of  the  real  estate,  and  the  parties  taking 
leases  from  executors  would  often  do  well  to  take  the  advice 
of  counsel  as  to  the  authority  of  the  executors  to  lease,  and 
when  the  lease  is  one  of  importance,  and  there  are  doubts  as 
to  the  time  for  which  the  lease  should  run,  it  would  be  well  to 
get  the  direction  and  approval  of  the  proper  court. 

In  Case  Executors  have  a  Mere  Power  to  Sell  Real  Estate. 

55.  It  often  occurs  that  a  will  devises  real  estate  directly  to 
devisees  with  a  power  given  to  executors  to  sell  real  estate. 
In  such  case,  until  the  power  is  exercised,  the  real  estate  be- 
longs to  the  devisees,  who  have  control  of  the  renting  and 
of  the  collecting  of  the  rents  thereof.80 

In  Case  of  a  Trust  to  Sell,  but  Not  to  Rent. 

56.  A  trustee  will  not  be  chargeable  for  not  renting  real 
estate,  which  is  unproductive  and  uninclosed,  when  the  object 
of  the  trust  is  a  sale  and  not  renting. 

Power  of  Trustees  to  Agree  to  a  Renewal  of  Lease. 

57.  An  estate  was  vested  in  a  trustee  to  lease,  and  apply 
the  rents  during  certain  lives.     The  trustee  leased  for  five 

79  Adams  v.  Adams,  4  W.  160.        80  Blight  v.  Wright,  I  Phila.  549. 


DESCRIPTION    OF    PROPERTY    RENTED.  25 

years  with  the  option  of  renewal,  and  it  was  held  that  the  lease 
was  not  void  because  subject  to  renewal.  If  the  power  was- 
abused  it  might  have  given  rise  to  a  remedy  against  the  trus- 
tee in  damages,  or  if  by  collusion  against  both  trustee  and 
lessees.81 

Case  of  Personal  Liability  of  an  Executrix  under  a  Lease. 

58.  A  lease  was  made  to  a  woman  as  executrix  of  the  estate 
of  her  deceased  husband,  and  it  was  held,  that  she  was  per- 
sonally bound,  upon  the  principle,  that  a  promise  made  by 
an  executor  does  not  bind  the  estate,  but  the  executor  per- 
sonally, and  in  such  case  the  naming  of  a  party  as  executor  is 
mere  surplusage.82 

Assignee  for  the  Benefit  of  Creditors  Cannot  Lease. 

59.  In  case  of  an  assignment  for  the  benefit  of  creditors  by 
deed  of  the  usual  form,  the  only  duty  of  the  assignee  is  to 
sell  the  real  estate  under  the  power  of  sale  in  the  deed,  or 
under  order  of  court,  and  until  such  sale  the  assignor  may 
occupy  the  premises  or  receive  the  rents  thereof  for  his  own. 
use.     The  object  of  the  assignment  is  to  convert  the  property 
by  sale,  and  not  for  the  assignee  to  work  the  land  or  let  it  to 
others.     His  position  is  similar  to  that  of  an  executor  with 
a  naked  power  of  sale.83 

DESCRIPTION    OF   PROPERTY    RENTED. 
Not  Necessary  to  Particularly  Describe  Premises  in  a  Lease. 

60.  It  is  not  necessary  nor  usual  to  describe  the  premises 
demised  with  the  same  particularity  as  in  a  conveyance.     If 
the  property  is  described  in  the  lease,  in  a  general  way,  it  is- 
sufficient,  but  to  provide  for  an  action  of  ejectment  under 
the  lease,  the  property  had  better  be  fully  described  or  a  street 
number,  if  any,  given  to  comply  with  the  law  as  to  ejectments. 

81  Goehring's  Ap.,  81^  Pa.  283.  82  Gebler  v.  Culin,  6  Phila.  130. 

83  Detwiler's  Ap.,  96  Pa.  323. 


26  LANDLOKD    AND   TENANT. 

Ambiguous  Description  Supplied  by  Evidence  Outside  of  the  Lease. 

61.  Questions  often  arise  as  to  what  is  demised  which 
have  to  be  solved  by  parol  or  other  evidence  outside  of  the 
lease.     It  may  always  be  shown  by  parol  evidence  what  was 
and  what  was  not  parcel  of  the  demise,  and  intended  to  pass 
to  the  lessee.     By  evidence   of  extrinsic   circumstances   a 
general  and  comprehensive  term  may  be  controlled  and  re- 
stricted, to  pass  much  less  than  is  usually  included  in  the 
common  legal  meaning  of  the  term,  and,  on  the  other  hand,  a 
particular  and  limited  term  and  description  may  be  extended 
to  comprehend  and  include  much  more  than  it  generally  com- 
prises, in  order  to  give  effect  to  the  plain  and  obvious  mean- 
ing of  the  parties.84     It  was  held  that  it  was  competent  to  ex- 
plain by  parol  evidence  what  land  was  demised,  and  that  a 
part  of  a  tract  of  land  demised  was  not  included  in  the  lease.85 

List  of  Furniture  should  be  Annexed  to  Lease. 

62.  If  a  furnished  house  be  leased  it  is  important  to  have 
a  list  of  the  articles  attached  to  the  lease,  to  be  retained  by 
the  landlord,  and  power  can  be  given  in  the  lease  for  the  land- 
lord to  take  the  furniture  in  case  of  trouble.     The  tenant  is 
bound  to  preserve  the  furniture  in  good  order.86 

Intention  of  What  is  Leased,  from  Actual  Use. 

63.  So,  where  the  agreement  was  that  "the  present  lessee 
and  occupant  of  the  first  floor,"  etc.,  might  "continue  to  use" 
the  same,  it  being  conceded  that  he  did  not  have  a  literally 
exclusive  possession  of  the  whole  first  floor,  parol  evidence 
was  admitted  to  show  what  he  actually  used  and  occupied  be- 
fore the  agreement  was  executed. 

Case  of  Property  Described  as  on  the  Wrong  Corner. 

64.  It  is  no  defence  that  the  premises  are  described  in  the 
lease  as  on  the  wrong  corner.87 

84  Addison  on  Contracts,  vol.  2,  §  681. 

85  Tate  v.  Reynolds,  8  W.  &  S.  91. 

86  2  Bouvier's  Die.  (Rawle),  45.        87  Henry  v.  Wilson,  I  W.  N.  C.  506. 


TERM    OF    A    LEASE.  27 

Exceptions  and  Reservations  in  Lease. 

65.  When  the  whole  of  a  property  is  not  intended  to  be 
leased,  and  a  part  is  to  be  retained  by  the  landlord,  a  general 
description  of  the  whole  premises  may  be  qualified  by  an  ex- 
ception ;  for  example,  a  field  can  be  excepted  out  of  a  farm, 
or  a  room  out  of  a  house,  and  if  the  lessor  intends  to  retain 
a  right  of  way  or  any  other  right  or  control  over  the  demised 
premises,  he  must  expressly  reserve  it. 

Implied  Grant  of  Things  Necessary  for  the  Use  of  Property. 

66.  A  grant  of  the  thing  passes  the  incident  as  well  as  the 
principal,  though  the  latter  only  be  mentioned ;  thus  a  man- 
sion would  include  all  the  outbuildings  used  with  the  same. 
Generally  all  those  things  necessary  to  the  enjoyment  of  the 
thing  granted  will  pass  without  being  described.88 

Authority  of  Landlord  to  Enter  After  He  has  Leased. 

67.  The  landlord  can  reserve  the  right  to  go  upon  the 
premises  peaceably,  for  the  purpose  of  ascertaining  whether 
?.ny  waste  or  injury  has  been  committed  by  the  tenant  or 
other  persons,  first  giving  notice  of  his  intention.     But  he  has 
•no  such  right  unless  he  reserves  it  in  the  lease.    He  may  also 
use  all  ways  appurtenant  thereto,  and  peaceably  enter  the 
premises  to  demand  rent,  to  view  waste,  or  to  remove  an  ob- 
struction.89     But  if  the  rent  is  payable  in  hay  or  produce, 
to  be  delivered  to  him,  he  is  not  entitled  to  go  upon  the  land 
and  take  it,  until  it  is  delivered  to  him  by  the  tenant,  or  until 
after  it  has  been  severed  and  set  apart  for  his  use. 

TERM   OF  A   LEASE. 
Estate  for  Years. 

68.  An  estate  for  years  is  for  some  determinate  period.     If 
the  lease  be  for  but  one-half  a  year,  or  a  quarter,  or  a  less 
time,  the  lessee  is  a  tenant  for  years.90 

88  Taylor's  Landlord  and  Tenant,  §§  157,  158,  161,  162. 

89  Story  on  Contracts,  §  900.        90  2  Blackstone's  Commentaries,  140. 


28  LANDLORD    AND    TENANT.  '  *^ 

Estate  at  Will. 

69.  An  estate  at  will  is  where  lands  are  let  to  hold  at  the 
will  of  the  lessor.91 

Tenant  from.  Tear  to  Year. 

70.  A  tenancy  from  year  to  year  is  where  lands  are  ex- 
pressly or  impliedly  demised  by  the  landlord  to  the  tenant  to 
hold  from  year  to  year,  so  long  as  the  parties  respectively 
please.92 

Tenancy  from  Quarter  to  Quarter,  from  Month  to  Month,  etc. 

71.  When  the  tenancy  is  for  a  short  period,  as  for  a  quarter, 
a  month  or  a  week,  and  the  tenant  holds  over,  there  is  estab- 
lished like  in  the  case  of  a  tenancy  from  year  to  year,  a  ten- 
ancy from  quarter  to  quarter,  and  from  month  to  month,  and 
from  week  to  week.93 

Perpetual  Leases. 

72.  The  term  of  a  lease  may  be  perpetual.93* 

Lease  Without  a  Term  Stated. 

73.  Where  there  is  a  demise  for  an  annual  rent,  and  no 
term  is  mentioned,  there  is  a  lease  from  year  to  year.94 

Tenancy  from  Year  to  Year  by  Express  Agreement. 

74.  Where  a  lease  is  made  from  year  to  year  conditioned 
to  be  null  and  void  if  rent  is  not  paid  at  a  stated  time  it  is 
not  for  a  fixed  and  determinate  period,  but  a  lease  from  year 
to  year. 

Term  of  Tenancy  Implied  by  the  Payment  of  Bent. 

75.  Where  rent  is  received  by  a  landlord,  that  raises  an 

91  Blackstone's  Commentaries,  145. 

92  2  Addison  on  Contracts,  §  684. 

93  Taylor's  Landlord  and  Tenant,  §  478. 
93*  Effinger  v.  Lewis,  32  Pa.  367. 

94  Hey  v.  McGrath,  8iJ^   Pa.  310.  •' 


TERM    OF    A    LEASE.  29 


implied  tenancy  from  year  to  year,  or  the  like,  though  the 
tenant  was  originally  let  in  under  an  invalid  lease. 

Landlord  may  Elect  to  Treat  Tenant  Holding  Over  after  Lease  as 
Tenant  or  Trespasser. 

76.  Where  the  lease  is  for  a  definite  period  and  the  tenant 
holds  over,  the  landlord  may  treat  him  as  a  tenant  by  suffer- 
ance, and  turn  him  out  without  three  months'  notice  previous 
to  the  end  of  the  period,  but  the  landlord  may  at  his  election 
treat  the  tenant  from  year  to  year  at  the  same  rent.95 

Tenant  by  the  Month  may  Terminate  Lease  at  End  of  Any  Month. 

77.  If  a  tenant  rents  by  the  month  he  has  the  right  to  ter- 
minate the  lease  at  the  end  of  any  month.96     When  we  are 
dealing  with  the  question  of  an  implied  renewal  of  a  tenancy, 
all  the  terms  of  the  former  lease  must  be  considered.     The 
purpose  is  not  to  make  a  new  lease  essentially  different,  but 
to  continue  the  former  as  far  as  its  terms  may  be  applicable. 
In  its  very  nature  the  implied  renewal  of  a  lease  assumes  a 
continuation  of  its  characteristic  features.     Hence  if  a  land- 
lord elect  to  treat  one  holding  over  as  a  tenant,  he  thereby 
affirms  the  form  of  the  tenancy  under  which  the  tenant  pre- 
viously held.     If  there  was  a  tenancy  by  the  month,  it  will 
presumably   so   continue.     The   landlord   cannot   impose   a 
longer  term  or  one  radically  different  from  the  former.97 

A  Lease  from  Year  to  Year,  at  the  Pleasure  of  the  Parties,  a  Con- 
tinuous Lease. 

78.  A  lease  from  year  to  year  during  the  pleasure  of  the 
parties,  is  only  a  lease  for  one  year  certain,  and  every  year 
after  it  is  a  springing  interest  arising  from  the  first  contract 
and  parcel  of  it;  so  that  with  a  view  to  the  time  which  has 
dapsed  or  the  number  of  years  which  the  tenant  has  occupied, 
it  is  considered  an  estate  for  all  that  time,  including  the  cur- 

95  Hemphill  v.  Flynn,  2  Barr,  144. 

96  Milling  v.  Becker,  96  Pa.  182.  97  Hollis  v.  Burns,  100  Pa.  206. 


30  LANDLORD    AND   TENANT. 


rent  year,  and  the  lessor  may  distrain  and  avow  as  for  so 
much  rent  in  arrears  upon  one  entire  lease.  After  the  com- 
mencement of  each  new  year  it  becomes  an  entire  lease  cer- 
tain for  years  past  and  also  for  the  year  entered  upon."8 

The  Beginning  and  End  of  a  Lease. 

79.  A  lease  of  land  for  one  year  from  the  first  day  of  April, 
expires  on  the  last  day  of  March  of  the  next  year.     The  first 
day  of  April  when  the  lease  was  to  commence,  being  included 
in  the  term." 

Continuation  of  Lease  at  Option  of  Tenant. 

80.  If  the  duration  of  a  lease  is  left  optional  by  the  terms 
of  the  lease,  it  must  be  construed  favorably  to  the  tenant.    If 
the  duration  is  left  optional  by  the  terms  of  the  lease,  without 
saying  at  whose  option,  as,  for  instance,  if  a  lease  is  made  for 
seven,  fourteen  or  twenty-one  years,  it  means  at  the  option 
of  the  tenant,  who  has  the  right  of  choosing  whether  he  will 
put  an  end  to  the  lease  at  the  end  of  seven  years,  or  continue 
it  for  fourteen  years  or  twenty-one  years.1 

Agreements  for  Extension  of  Terms  and  Options. 

81.  It  is  customary  to  have  the  lease  to  continue  from  time 
to  time  in  default  of  notice  and  to  give  options  of  renewals. 
As  to  these  matters  the  practical  directions  for  renting  prop- 
erty are  referred  to. 

RENT. 
In  What  Payable. 

82.  Rent  may  be  payable  in  money,  provisions,  chattels  or 
labor. 

What  Bent  may  Issue  Out  Of. 

83.  A  rent  may  issue  out  of  lands  and  tenements  cor- 
poreal and  their  furniture.2 

98  Roberts'  Dig.  317.        99  Marys  v.  Anderson,  24  Pa.  272. 
i  Com.  v.  McNeile,  8  Phila.  438.  2  Mickle  v.  Miles,  31  Pa.  20. 


RENT.  31 

Interest  on  Bent. 

84.  Interest  can  be  claimed  on  rent  at  the  time  it  is  due; 
although  it  cannot  be  included  in  a  claim  for  a  distress.3    Rent 
carries  interest  from,  the  time  it  is  due,  unless  from  the  con- 
duct of  the  landlord  it  may  be  inferred  that  he  means  not  to 
insist  on  it,  or  unless  he  acts  in  an  oppressive  manner  by  de- 
manding more  than  is  due  where  the  tenant  is  willing  to  do 
justice,  or  there  are  other  equitable  circumstances  making 
the  charge  improper.4 

When  no  Time  Fixed  for  the  Payment  of  Bent. 

85.  In  a  lease  for  a  year,  if  no  time  is  fixed  for  the  payment 
of  rent,  whether  in  money  or  kind,  it  is  not  payable  until  the 
end  of  the  year.5 

Bent  Due  After  a  Sale. 

86.  In  case  the  landlord  sells  the  demised  premises,  the 
rent  which  falls  due  after  the  sale  goes  to  the  purchaser,  un- 
less there  is  an  agreement  to  the  contrary.6 

Custom  in  Philadelphia  to  Apportion  Bent. 

87.  In  Philadelphia  it  is  the  custom  to  apportion  the  rent 
to  the  date  of  the  settlement  of  the  purchase. 

A  Tenant  Bound  hy  His  Covenant  to  Pay  Bent,  although  He  Assigns 
Lease. 

88.  A  tenant  is  bound  by  his  express  covenant  to  pay  rent, 
though  he  has  assigned  the  lease  with  thelandlord's assent  and 
the  assignee  is  accepted  as  tenant,  and  although  the  rent  has 
been  received  from  him,  unless  the  landlord  has  accepted  the 
surrender  of  the  former  and  released  him.7 

3  Gaskins  v.  Gaskins,  17  S.  &  R.  390. 

4  Obermyer  v.    Nichols,   6   Binn.    158;     Railroad    Co.   v.    Smith,    105 
Pa.  195. 

5  Boyd  v.  McCombs,  4  Barr,  146. 

6  Johnson  v.  Smith,  3  P.  &  W.  496. 

7  Frank  v.  Maguire,  42  Pa.  77. 


32  LANDLORD    AND    TENANT. 

Bent  Due  Landlord  Before  He  Dies  Goes  to  His  Executor  as  Personal 
Property. 

89.  When  the  lessor,  being  tenant  in  fee,  dies  after  the  rent 
becomes  due,  it  will  be  payable  to  the  executors. 

Bent  Due  After  Death  of  Lessor  Goes  to  His  Heir  or  Devisee. 

90.  If  he  dies  before  it  becomes  due  it  will  be  payable  to 
heir  or  devisee.8 

An  Agreement  of  Tenant  to  Pay  Assessments. 

91.  A  clause  in  a  lease  which  provides  that  the  lessee  shall 
pay  all  water  rents,  taxes  and  assessments  upon  the  premises 
includes  a  charge  for  paving  and  curbing  streets  in  front  of 
the  leased  premises,  when  ordered  by  the  municipal  author- 
ities.9 

Notice  to  Lessor  on  Contingency  Releasing  Lessee. 

92.  Where  a  lease  provides  that  on  the  occurrence  of  a  con- 
tingency the  lessee  shall  be  relieved  of  any  obligation  of  the 
lease,  the  lessee  must  give  notice  to  the  lessor  of  the  occurrence 
of  the  contingency  if  he  desires  to  avail  himself  of  the  benefit 

thereof;  the  mere  occurence  will  not  work  relief.10 

« 

A  Landlord  Leaving  a  Number  of  Children,  Each  Child  is  Entitled 
to  His  or  Her  Share. 

93.  If  the  landlord  should  die  leaving  a  number  of  chil- 
dren, his  estate  will  descend  to  them  as  tenants  in  common, 
and  the  tenant  will  be  bound  to  pay  each  child  his  proper 
proportion  of  the  rent.11 

Apportionment  of  Bent  in  Case  of  Sale  of  Beversion  by  Landlord 
in  Parts. 

94.  In  case  of  the  sale  of  a  reversion  in  parts,  so  that  dif- 
ferent persons  become  entitled  to  the  rent,  the  different 

8  Comyn  on  Landlord  and  Tenant,  226. 

9  Griffin  v.  Pottery  Co.,  14  W.  N.  C.  266. 

10  Double  v.  Heat  Co.,  37  W.  N.  C.  389. 

11  Bank  v.  Wise,  3  Watts,  394. 


RENT.  33 

parties  entitled  to  the  rent  may  agree  as  to  an  apportionment. 
If  they  do  not  agree  the  apportionment  is  .to  be  made  by  the 
jury  according  to  the  value  of  the  parts.12 

Bent  Payable  in  Advance  upon  Contingency. 

95.  Rent,  even  for  the  whole  term,  may  be  made  payable 
in  advance  and  distrained  for,  upon  the  happening  of  any  con- 
tingency, such  as  an  attempt  to  remove  goods  from  demised 
premises.13 

Tenant  Bound  by  His  Covenant  to  Pay  Bent  though  Property  is 
Burned. 

96.  A  covenant  to  pay  rent  is  not  extinguished  by  the  de- 
struction of  the  leased  premises  by  fire,  unless  there  be  an 
express  covenant  to  that  effect,  and  it  is  no  defence  to  a 
claim  for  rent  that  the  premises  had  been  destroyed  by  fire, 
and  that  the  landlord  had  received  the  insurance  money.14 

Instances  of  Losses  to  Tenants  for  the  Want  of  an  Exemption  from 
the  Payment  of  Bent  in  Case  of  Eire. 

97.  There  are  cases  in  Pennsylvania  showing  that  the  land- 
lords have,  in  numerous  instances,  stood  upon  their  legal 
rights  in  such  cases.     In  one  case  it  was  held  that,  although 
the  demised  property  was  insured,  and  the  landlord  received 
the  insurance  money  for  a  loss  from  a  relief  fund,  there  was 
no  defence  to  the  payment  of  rent  in  case  of  loss  by  fire.15 

Bents   made   Payable   to   Tenant   for   Life   Apportioned   under   Act 
of  1834. 

98.  By  the  act  of  assembly  of  Feb.  24,  1834,  the  rent  is  to 
be  apportioned  to  the  time  of  the  death,  the  administrator  of 
the  life-tenant  being  entitled  to  the  rent,  to  the  time  of  the 
death  of  the  life-tenant  and  the  balance  going  to  the  re- 
mainderman. 

12  Reed  v.  Ward,  22  Pa.  144.        13  Goodwin  v.  Sharkey,  80  Pa.  149. 

14  Hazlett  v.  Powell,  30  Pa.  293. 

15  Magaw  v.  Lambert,  3  Pa.  444. 

3 


34  LANDLORD   AND   TENANT. 

Bent  Payable  in  Grain,  etc.,  Apportioned  under  Act  of  1834. 

99.  A  farm  was  leased  for  one  year  for  a  portion  of  the 
grain.     The  landlord  died  during  the  term.     It  was  held,  that 
the  grain  was  to  be  apportioned  according  to  said  law,  in  the 
same  proportion  that  the  time  from  the  beginning  of  the  lease 
to  the  death  of  the  landlord  bore  to  the  whole  year;  the 
current  period  being  the  whole  of  the  year  for  which  the 
lease  was  drawn.16 

When  Bent  is  Payable  in  Grain,  it  is  Not  Due  until  Delivered. 

100.  When  the  landlord  is  entitled  to  a  share  of  grain  in 
the  ground,   deliverable  in   the   bushel,   until   the   grain  is 
severed  and  delivered  to  the  landlord,  he  has  no  interest  in  the 
thing  itself.     If  he  sells,  it  goes  to  his  vendee,  and  the  land- 
lord cannot  pursue  it  in  his  hands.     The  only  remedy  for  the 
landlord  is  by  distress  as  in  case  of  money  rent.17     Grain 
severed  before  sheriff's  sale  will  not  pass  to  the  purchaser.18 

Interest  of  Landlord  in  Share  of  Grain  Cannot  be  Taken  in  Execu- 
tion Before  Severance, 

101.  Where  land  is  let  to  a  tenant  on  shares,  the  interest  of 
the  landlord,  in  the  growing  grain  cannot  be  seized  and  sold 
on  execution  before  severance,  so  far  as  to  pass  a  title  thereto 
against  a  purchaser  at  sheriff's  sale  of  the  land.19 

Good-will  of  Demised  Premises. 

1 02.  The  good-will  is  not  to  be  considerd  separately  from 
the  rental,  and  its  value  is  to  be  considered  in  fixing  the  rent. 
If  a  tenant  establishes  a  good-will,  the  landlord  will  receive 
the  benefit  thereof  upon  the  expiration  of  the  tenant's  lease, 
and  the  good-will  will  be  inseparably  attached  to  the  premises. 
Of  course,  a  landlord  could  agree  to  pay  for  the  good-will  at 

16  Borie  v.  Crissman,  82  Pa.   125. 

17  Rinehart  v.   Olwine,  5  W.   &  S.   157. 

18  Long  v.  Seavers,  103  Pa.  517;  Baker  v.  Lewis,  150  Pa.  251. 

19  Long  v.  Seavers,  Leg.  Int.  (Sept.  21,  1883),  Vol.  40,  p.  359. 


COVENANTS.  35 

the  end  of  the  lease,  but  he  would'  not  be  likely  to  do  so,  and 
if  a  tenant  expects  to  create  and  keep  a  good-will,  he  can 
have  the  lease  to  provide  for  a  long  term,  with  no  provision 
for  the  landlord  to  terminate  the  lease  except  for  defaults  of 
the  tenant.20 

COVENANTS. 

Covenants  Running  with  the  Land. 

103.  A  covenant  is  said  to  run  with  the  land  when  either 
the  liability  to  perform  it  or  the  right  to  take  advantage  of  it 
passes  to  the  assignee  of  the  land.21 

Implied  Covenants  Bun  with  the  Land. 

104.  All  implied  covenants  run  with  the  land;  22  some  ex- 
press covenants  in  leases  run  with  the  land  and  others  do  not. 

When  Covenants  Bun  with  the  Land. 

105.  A  covenant  runs  with  the  land  when  it  relates  to  or 
touches  and  concerns  the  land  in  such  a  way  that  their  benefit 
or  burden  is  capable  of  running  with  it.23 

Assignees  Bound  by  Covenants  Bunning  with  the  Land. 

106.  In  a  covenant  running  with  the  land  the  assignee  is 
bound  without  naming  him.24 

Examples  of  Covenants  Bunning  with  the  Land. 

107.  The  following  are  some  of  the  covenants  which  run 
with  the  land,  viz.:   For  quiet  enjoyment;  further  assurance; 
to  repair ;  to  give  peaceable  possession  to  the  lessor ;  to  give 
the  lessor  right  of  way ;  to  cultivate  lands  in  a  particular  man- 
ner; to  carry  on  a  particular  trade;  to  supply  a  lessee  with 
water;  to  pull  down  old  chimneys  and  erect  new  ones;  for 
punctual  payment  of  rent ;  to  insure  a  factory  with  machinery 
and  fixtures. 

20  Thackray's  Ap.,  75  Pa.   132. 

21  I  Smith's  Leading  Cases,  133.  22  i  Smith's  Leading  Cases,  136. 
23  I  Smith's  Leading  Cases,  136.  24  I  Smith's  Leading  Cases,  130. 


36  LANDLORD    AND    TENANT.  , 

Covenant  to  Pay  Bent. 

1 08.  In  every  lease  a  covenant  for  the  payment  of  rent 
should  be  inserted.     If  there  is  no  such  covenant,  an  agree- 
ment to  pay  as  much  as  the  property  is  worth  will  be  implied. 
One  of  the  advantages  of  an  express  covenant  is,  that,  upon 
such  covenant,  the  tenant  always  remains  liable  to  pay  the 
rent.     In  case  there  is  only  an  implied  agreement,  the  ten- 
ant can  rid  himself  of  all  future  liability  by  assigning  the  lease 
even  to  a  beggar.25  ,       ,  j        A    _, 

• 

Covenants  Not  to  Assign  or  Underlet. 

109.  A  condition  in  a  lease  that  the  lessee  or  his  assigns 
shall  not  alien,  without  the  special  license  of  the  lessor,  is 
determined  by  an  alienation  by  license;  and  no  subsequent 
alienation  is  a  breach  of  the  condition,  nor  does  it  give  a 
right  of  entry  to  the  lessor.26 

Are  Construed  Strictly. 

no.  A  condition  against  the  assignment  of  a  lease  will  not 
embrace  an  underletting,  nor  will  a  proviso  that  the  demised 
premises  shall  not  be  underlet  preclude  the  power  of  making 
an  assignment.27 

An  Assignment  by  Law  Not  a  Breach. 

in.  An  assignment  by  act  of  law,  as  in  bankruptcy,  or 
by  execution,  is  not  a  breach  of  the  covenant  not  to  assign, 
and  even  a  sale  of  a  lease  under  an  execution  upon  a  con- 
fession of  judgment  given  bona  fide  by  the  tenant  will  not  be  a 
breach.27*  To  avoid  such  a  result,  leases  sometimes  have  a 
provision  against  involuntary  assignments ;  for  example,  "nor 
shall  the  lessee  assign  the  term  hereby  granted,  or  underlet 
the  premises,  without  the  written  consent  of  the  lessor  en- 

25  Taylor's  Landlord  and  Tenant,  §  371. 

26  Dumpor's  Case,  i  Smith's  Leading  Cases,  89. 

27  I  Smith's  Leading  Cases,  128. 
27*  2  Stephens'  Nisi  prius,  1124. 


COVENANTS.  37 

dorsed  thereon,  an  assignment  within  the  meaning  of  this 
lease  being  understood  and  intended  to  comprehend  not  only 
the  voluntary  action  of  the  lessee,  but  also  every  levy  or  sale 
on  execution,  or  other  legal  process,  and  every  assignment  or 
sale  in  bankruptcy  or  insolvency,  or  under  any  other  com- 
pulsory procedure  or  order  of  court."  It  has  been  held,  that 
a  receiver  of  a  lease  cannot  transfer  it  without  the  assent  of 
the  lessor,  the  lease  prohibiting  an  assignment  without  such 
consent.28 

Covenant  as  to  Use  and  Occupancy. 

112.  There  can  be  such  a  covenant  and  by  agreement  its 
violation  may  cause  a  forfeiture  of  the  lease. 

Landlord  Not  Bound  to  Bepair. 

113.  In  the  absence  of  an  express  agreement,  there  is  no 
implied  agreement  of  the  landlord  to  repair  demised  premises, 
nor  does  he  impliedly  undertake  that  they  are  fit  for  the  pur- 
poses for  which  they  are  rented ;  that  they  are  tenantable,  or 
shall  continue  so.     If  they  burn  down,  he  is  not  bound  to  re- 
build.    The  rule  here,  as  in  other  cases,  is  caveat  emptor  (let 
the  purchaser  beware).     The  lessee's  eyes  are  his  bargain. 
He  is  bound  to  examine  the  premises  he  rents,  and  secure 
himself  by  covenants  to  repair  and  rebuild.29 

The  Repairs  a  Tenant  is  Bound  to  Make. 

1 14.  A  lessee  for  years  is  bound  to  make  tenantable  repairs, 
such  as  putting  in  windows  or  doors  that  had  been  broken 
by  him,  or  repairing  fences  and  highways,  and  keeping  the 
premises  wind  and  water-tight,   so  as  to  prevent   obvious 
waste  and  decay ;  but  is  not  bound  to  make  lasting  and  gen- 
eral repairs,  such  as  putting  a  new  roof  upon  an  old,  worn-out 
house  or  building,  or  putting  up  new  fences.     The  extent  to 
which  he  is  bound  to  repair  is  not  very  definitely  limited; 

28  Spencer  v.  Darlington,  74  Pa.  286. 

29  2  Addison  on  Contracts,  696. 


38  LANDLORD    AND    TENANT. 

but  he  seems  not  to  be  bound  to  make  good  such  deteriora- 
tions as  arise  from  necessary  wear  and  tear  incidental  to  a 
proper  use,  or  for  injuries  resulting  from  inevitable  accident, 
unless  they  can  be  remedied  at  slight  expense  and  would 
otherwise  occasion  serious  damage ;  but  whatever  injuries  are 
occasioned  by  his  voluntary  negligence  he  is  bound  to  repair ; 
but  a  tenant  is  not  bound  to  supply  or  maintain  anything  in 
the  nature  of  ornament,  such  as  painting,  whitewashing,  or 
papering,  unless  it  be  necessary  in  order  to  preserve  exposed 
timber  from  decay.  And  the  rule  prevails,  though  the  ten- 
ant be  under  a  covenant  to  leave  the  premises  "in  good  and 
sufficient  repair,  order  and  condition."  29  * 

Express  Covenant  of  Tenant  to  Repair. 

115.  Where  in  a  lease  there  is  an  express  and  uncondi- 
tional agreement  to  repair  and  keep  in  repair,  the  tenant  is 
bound  to  do  so,  though  the  premises  be  destroyed  by  fire  or 
other  accident.     To  guard  against  such  a  result  there  can  be 
an  exception  in  the  contract  or  the  tenant  can  insure  against 
the  risk.30  .  ,  j 

Tenant  is  Not  Bound  by  His  Covenant  to  Repair  Injuries  by  Act  of 
God  or  Public  Enemies. 

1 1 6.  The  tenant  is  not,  by  his  covenant  to  repair,  bound 
to  repair  an  injury  occasioned  by  an  act  of  God  or  a  public 
enemy.31 

Tenant  Cannot  Charge  Landlord  for  Permanent  Repairs  made  With- 
out His  Authority. 

117.  If  a  tenant  put  permanent  repairs  on  the  premises 
without  consent  of  the  landlord,  he  cannot  charge  the  land- 
lord for  them.32 


2g*  Story  on  Contracts,  §§  924,  925. 

30  Hoy  v.  Holt.  91  Pa.  88. 

31  Pollard  v.  Shaaffer,  i  Dallas,  210. 

32  Kline  v.  Jacobs,  68  Pa.  57. 


COVENANTS.  39 

Agreement  of  Landlord  to  Repair  Minor  to  that  of  Tenant  to  Pay 
Kent. 

1 1 8.  A  tenant  in  possession  agreed  to  take  a  lease  of  prem- 
ises for  another  year  if  the  landlord  would  make  certain  re- 
pairs and  additions,  which  he  agreed  to  do.     The  tenant  re- 
fused to  pay  the  rent  because  the  landlord  had  not  repaired 
and  made  the  additions.     The  landlord  distrained  for  rent, 
and  in  an  action  of  replevin  it  was  held  that  if  the  tenant  held 
and  enjoyed  the  demised  premises,  the  covenant  on  the  part 
of  the  landlord  to  repair  and  make  additions  was  minor  and 
subordinate,  and  did  not  go  to  the  essence  of  the  contract, 
so  as  to  defeat  the  rent  in  toto;  that  he  was  not  discharged 
from  liability  to  pay  the  rent  unless  the  building  was  worth- 
less for  the  purpose  for  which  it  was  rented  without  such  ad- 
ditions and  improvements,  and  if  any  damages  had  occurred 
to  the  tenant  by  reason  of  such  non-performance  on  the  part 
of  the  landlord,  the  tenant  is  entitled  to  have  them  deducted 
from  the  rent  due,  and  if  in  excess,  to  a  verdict.33 

Measure  of  Damages  when  Landlord  Breaks  His  Agreement  to  Re- 
pair. 

119.  A  lease  of  a  hotel  stipulated  that  the  landlord  would 
raise  the  house,  add  a  new  story,  and  make  other  alterations ; 
the  tenant  alleged  that  the  alterations  had  been  negligently 
done,  and  that  his  furniture  had  been  injured,  etc.,  he  refused 
to  pay  the  rent,  on  the  ground  that  he  suffered  greater  dam- 
age than  its  amount.     The  landlord  distrained.     In  replevin 
held,  the  measure  of  damages  to  be  the  difference  between 
the  amount  for  which  the  property  would  have  rented  with 
the  improvements,  and  the  amount  for  which  it  would  rent 
without  them.34 

Tenant  Not  Believed  from  Loss  in  Business  during  Repairs. 

1 20.  Where  a  landlord  enters  by  consent  of  the  tenant  to 
make  repairs,  with  a  stated  reduction  of  rent  for  the  time  re- 


33  Prescott  v.  Otterstatter,  85  Pa.  534. 

34  Prescott  v.  Otterstatter,  79  Pa.  462. 


40  LANDLORD    AND    TENANT. 

quired,  the  tenant  cannot  set  up  as  a  defence,  the  damage  to 
his  business  resulting  from  the  unexpected  length  of  time  in 
making  the  repairs  unless  unreasonably  delayed.35 

The  Covenant  that  Improvements  shall  Remain  Should  be  Guarded 
Against  by  the  Tenant  as  Dangerous. 

121.  An  expensive  boiler  was  put  in  a  brewery  by  a  tenant 
and  it  was  held,  that  under  such  a  covenant  it  could  not  be 
removed.36     This  is  a  dangerous  covenant  to  a  tenant  who 
may  put  up  fixtures.     If  all  fixtures  are  not  included  in  the 
term  improvement,  it  will  often  be  difficult  to  draw  a  dividing 
line  between  those  fixtures  which  may  be  classed  as  improve- 
ments and  those  which  are  not. 

Definition  of  the  Word,  "Improvement." 

122.  The  Supreme  Court  seems  to  think  that  an  engine 
would  not  be  comprehended  as  an  improvement,  but  that  it 
would  apply  to  permanent  fixtures  or  buildings,  etc.37 

Covenant  of  Landlord  to  Sell  to  Tenant. 

123.  Where  the  lease,  or  a  writing  signed  by  the  lessor, 
gives  a  tenant  the  right  to  purchase  the  demised  premises, 
equity  will  enforce  specific  performance.38 

Covenant  for  Re-Entry. 

124.  Leases  sometimes  contain  a  proviso  or  covenant  for 
a  re-entry  by  the  landlord  in  case  the  tenant  does  not  pay  the 
rent  or  perform  his  agreements;  for  example  the  following 
form  is  given :  "Provided  always,  and  it  is  hereby  expressly 
agreed,  that  if  the  rent  hereby  reserved,  or  any  part  thereof, 
shall  be  unpaid  for         days  after  any  of  the  days  on  which 
the  same  ought  to  have  been  paid  (although  no  formal  de- 
mand shall  have  been  made  thereof),  or  in  case  of  the  breach 

35  Reinman  v.  Blair,  96  Pa.  155. 

36  Agnew  v.  Whitney,  10  Phila.  77. 

37  Lemar  v.  Miles,  4  Watts,  330. 

38  Newell's  Ap.,  39  Leg.  Int.  336. 


COVENANTS.  41 

or  non-performance  of  any  of  the  covenants  and  agreements 
herein  contained,  on  the  part  of  the  said  lessee,  his  executors, 
administrators,  and  assigns,  then,  and  in  either  of  such  cases, 
it  shall  be  lawful  for  the  said  lessor,  at  any  time  hereafter, 
into  and  upon  the  said  demised  premises,  or  any  part  thereof, 
in  the  name  of  the  whole,  to  re-enter,  and  the  same  to  have 
again,  repossess  and  enjoy,  as  of  his  or  their  former  estate, 
anything  to  the  contrary  notwithstanding." 

Requisites  Before  Entry. 

125.  At  common  law,  before  a  landlord  could  enter  for  a 
forfeiture  for  non-payment  of  rent,  he  must  have  made  a 
formal  demand  of  the  precise  sum  due  for  the  last  current 
quarter  only  on  the  date  it  became  due,  before  sunset,  at  the 
most  notorious  place  upon  the  demised  premises,  or  at  the 
place  mentioned  for  payment  in  the  lease.39     In  the  above 
form  a  formal  demand  of  rent  is  dispensed  with,  which  dis- 
pensation will  be  operative. 

There  Must  Not  be  a  Breach  of  the  Peace  in  Making  Entry. 

126.  Notwithstanding  a  landlord  may  have  the  right  to 
take  possession  of  the  demised  premises,  by  a  forfeiture  or  a 
termination  of  the  lease,  he  cannot  commit  a  breach  of  the 
peace  in  so  doing,  as  will  appear  under  the  section  as  to  forci- 
ble entry  and  detainer. 

In  Pennsylvania  a  Re-Entry  is  Not  Necessary  for  a  Forfeiture. 

127.  In  England  re-entry  is  necessary  to  express  the  op- 
tion of  the  landlord  to  claim  a  forfeiture,  whilst  in  Pennsyl- 
vania it  depends  upon  the  terms  of  the  instrument,  unless 
there  be  evidence  to  affect  the  landlord  with  a  waiver  of  the 
breach,  like  the  receipt  of  rent,  or  other  equally  unequivocal 
act.40     Leases  for  years,  granted  on  condition  to  be  null  and 

39  Taylor's  Landlord  and  Tenant,  §493;  McCormic  v.  Connell,  6  S.  & 
R.  150;  Roberts  v.  Ristine,  2  Phila.  62. 

40  Sheaffer  v.  Sheaffer,  37  Pa.  525;  Davis  v.  Moss,  38  Pa.  346. 


42  LANDLORD    AND    TENANT. 

void,  become  so  by  breach  of  the  condition,  and  cannot  be 
set  up  by  recognition.41 

Waiver  of  Forfeiture. 

128.  If  the  condition  is,  that  the  landlord  may  re-enter  or 
avoid  the  lease,  the  lease  is  voidable  only  and  may  be  affirmed 
by  the  acceptance  of  rent,  if  the  lessor  has  notice  of  the  breach 
at  the  time.42 

Amicable  Action  and  Confession  of  Judgment  in  Ejectment. 

129.  Leases  may  contain  an  agreement  that  if  the  tenant 
does  not  pay  his  rent,  deliver  possession  or  perform  any  of 
liis  agreements,  an  amicable  action  and  confession  of  judg- 
ment in  ejectment  may  be  entered  of  record  in  court,  and  that 
the  landlord  may  thereupon  be  put  into  possession  by  the 
sheriff.     One  of  the  forms  for  such  purpose  is  as  follows: 
"And  it  is  further  agreed,  that  if  the  said  rent  shall  at  any  time 
"be  in  arrear  or  unpaid,  or  if  the  said  lessee  shall  underlet  or 
otherwise  use  the  said  premises  than  as  above  expressed,  or 
shall  fail  to  comply  with  the  conditions  of  this  lease,  or  notice 
given  under  the  terms  hereof,  or  shall  not  well  and  truly  per- 
form and  fulfill  all  and  every  the  covenants  and  agreements 
herein  contained  on  the  part  of  the  lessee  to  be  performed  and 
kept,  then  this  lease  shall,  at  the  option  of  the  said  lessor, 
cease  and  absolutely  determine,  and  any  attorney  may  im- 
mediately thereafter,  as  attorney  for  the  said  lessee,  at  the 
sole  request  of  the  said  lessor,  sign  an  agreement  for  entering 
in  any  competent  court,  an  amicable  action  and  judgment  in 
ejectment  (without  any  stay  of  execution  or  appeal)  against 
the  said  lessee,  and  all  persons  claiming  under  said  lessee,  for 
the  recovery  by  the  said  lessor  of  possession  of  the  hereby  de- 
mised premises,  without  any  liability  on  the  part  of  the  said 
attorney,  for  which  this  shall  be  a  sufficient  warrant ;  and 
thereupon  a  writ  of  habere  facias  possessionem  may  issue  forth- 
with without  any  prior  writ  or  proceeding  whatsoever,  and 

41  Ray  v.  Gas  Co.,  138  Pa.  576.  42  Pennant's  Case,  3  Co.  64  a. 


COVENANTS.  43 

the  lessee  hereby  releases  to  the  lessor  all  errors  and  defects 
whatsoever  in  entering  such  action  or  judgment,  or  causing 
such  writ  of  habere  facias  possessimwm  to  be  issued,  or  in  any 
proceeding  thereon,  or  concerning  the  same;  and  hereby 
agrees  that  no  writ  of  error  or  objection  or  exception  shall  be 
made  or  taken  thereto;  and  a  copy  of  this  lease,  verified  by 
affidavit,  being  filed  in  said  action,  it  shall  not  be  necessary 
to  file  the  original  as  a  warrant  of  attorney,  any  law  or  rule 
of  court  to  the  contrary  notwithstanding.  No  such  deter- 
mination of  this  lease,  nor  taking  or  recovering  possession  of 
the  premises,  shall  deprive  the  lessor  of  any  other  action 
against  the  lessee  for  possession,  for  rent  or  for  damages. 
All  rights  and  liabilities  herein  given  to,  or  imposed  upon 
either  of  the  parties  hereto,  shall  extend  to  the  heirs,  execu- 
tors, administrators,  successors  and  assigns  of  such  party." 
In  case  the  landlord  desires  to  recover  possession  upon  such 
a  provision,  he  employs  an  attorney-at-law,  who  will  prepare 
the  necessary  papers  and  have  judgment  entered  and  a  writ 
for  possession  handed  to  the  sheriff.  If  the  tenant  has  any 
defences  or  legal  objectionsto  the  proceeding,  he  also  employs 
an  attorney  who  will  have  the  judgment  opened  and  the  ten- 
ant let  into  a  defence. 

If  Tenant  has  not  Paid  His  Bent  Punctually  He  Must  be  Warned 
Before  Entry  of  the  Judgment  for  Non-Payment. 

130.  In  a  lease  the  rent  was  to  be  paid  monthly  on  certain 
days.  After  the  first  payment  the  rent  was  never  paid  punctu- 
ally, but  was  received  when  tendered,  and  it  was  held  that  the 
conduct  of  the  lessor  in  receiving  the  rent  at  any  time  was 
sufficient  to  induce  the  lessee  to  believe  that  the  right  to  re- 
cover possession  by  means  of  an  amicable  judgment  in  eject- 
ment could  not  be  insisted  upon.  If  notice  had  been  given 
that  future  payments  must  be  made  on  the  day  when  due,  the 
case  would  have  been  different.43 

43  Cogley  v.  Brown,  n  W.  N.  C.  224;  Oliver  v.  Brophy,  18  W.  N.  C. 
427. 


44  LANDLORD    AND    TENANT. 

For  a  Purchaser  to  Have  Benefit,  the  Lease  should  be  Assigned. 

131.  The  warrant  of  attorney  in  the  lease  for  confession  of 
judgment  for  possession  does  not  run  with  the  reversion. 
The  power  cannot  be  exercised  by  any  one  who  has  not  a 
specific  assignment  of  the  lease.44 

No  Appeal  to  Supreme  Court  Allowed. 

132.  A  judgment  confessed  in  an  amicable  action  of  eject- 
ment under  a  lease,  is  not  within  the  act  of  April  4,  1879,  pro- 
viding for  appeals  in  case  of  applications  for  the  opening  of 
judgments  entered  under  warrant  of  attorney.45 

Position  of  Under-Tenants. 

133.  A  lease  contained  a  provision  for  entering  an  amica- 
ble action  of  ejectment.     It  was  signed  by  the  lessee  alone. 
Judgment    was    entered    against    the    lessee    and    his    sub- 
tenant.    The  under-tenant  could  be  put  out  upon  the  judg- 
ment against  the  lessee,  but  judgment  could  not  be  entered 
against  the  under-tenant  in  ejectment.46 

Possession  by  Those  Holding  Paramount  Title. 

134.  After  a  judgment  had  been  entered  in  an  amicable 
action  in  ejectment  by  a  landlord  against  his  tenant,  the 
sheriff  returned  to  a  writ  for  possession  that  he  found  the  prem- 
ises in  possession  of  one  not  a  party  to  the  ejectment,  who 
claimed  to  hold  a  paramount  title.     To  the  return  of  the 
sheriff  was  annexed  an  answer  by  the  outside  party,  setting 
forth  that  he  was  in  possession  of  the  premises  at  the  time  the 
action  in  ejectment  was  brought,  and  that  the  tenant  was  not 
in  possession;  that  he  did  not  claim  under  the  tenant  but 
under  another  party.     It  was  held  that  as  the  outside  party 
was  brought  upon  the  record  by  the  proceedings  on  the  rule, 
and  as  the  order  directly  affected  his  right  to  the  possession 

44  Hockley  v.  McGlinn,  40  Leg.  Int.  279. 

45  Swartz's  Ap.,  119  Pa.  208. 

46  Stewart  v.   Lawson,   181   Pa.   549.  '.••"'• 


COVENANTS.  45 

of  the  premises  in  suit,  he  was  entitled  to  a  writ  of  error,  and 
that  as  such  party  was  in  possession  of  the  premises  and  was 
not  made  a  party  in  the  proceedings,  and  as  he  claimed  title 
paramount  to  the  tenant,  and  not  under  him  at  all,  the  action 
of  the  court  in  ejecting  him  without  hearing  or  trial  was 
error.47 

Implied  Covenant  for  Quiet  Possession. 

135.  In  every  demise  there  is  an  implied  covenant  of  peace- 
able and  quiet  enjoyment,  but  not  a  guarantee  to  the  tenant 
from  injury  by  the  wrongful  acts  of  a  stranger.     The  cove- 
nant for  quiet  enjoyment  only  means  that  the  tenant  shall  not 
be  evicted  or  disturbed  by  a  good  title  in  the  premises  or  part 
of  them.48 

Implied  Covenant  to  Protect  Tenant  Against  Paramount  Claims. 

136.  The  landlord  is  bound  to  protect  the  tenant  from  all 
paramount  claims.49     Such  payments  are  considered  as  actual 
payments  of  so  much  rent,  and  may  be  pleaded  by  way  of  pay- 
ment as  contradistinguished  from  set-off.     In  cases  of  land- 
lord and  tenant,  the  very  relation  in  which  the  parties  stand 
to  each  other  creates  an  implied  covenant  upon  the  land- 
lord's part,  that  the  tenant  shall  appropriate  such  part  of  his 
rent  as  shall  be  necessary  to  indemnify  him  against  prior 
charges,  and  that  the  money  so  appropriated  shall  be  paid  on 
account  of  rent.     The  landlord  is  obliged  to  pay  all  arrears 
of  ground  rent  or  interest  upon  mortgages  to  which  the  prop- 
erty leased  may  be  subject.     Some  cases  hold  that  a  mere 
threat  of  a  distraint,  and  others  hold  that  a  mere  demand  of 
rent  is  sufficient  to  authorize  the  tenant  to  pay  it.50     A  sub- 
tenant may  pay  the  paramount  landlord  where  his  occupation 
of  the  premises  is  liable  to  interruption  from  default  in  pay- 

47  Hessel  v.  Fritz,  23  W.  N.  C.  299. 

48  Moore  v.  Weber,  71  Pa.  429;    Barns  v.  Wilson,  116  Pa.  303. 

49  2  Addison  on  Contracts,  350. 

50  Notes  to  Lampleigh  v.  Brathwait,  I  Smith's  Leading  Cases,  277,  279. 


46  LANDLORD    AND    TENANT. 

ment  of  the  paramount  rent.     He  need  not  wait  for  process- 
to  be  taken  against  him.51 

Implied  Covenant  to  Use  Property  in  Tenant-like  Manner. 

137.  A  tenant  must  take  reasonable  care  of  the  property,, 
and  restore  it  at  the  expiration  of  the  term  for  which  it  is 
hired  in  the  same  state  and  condition  as  it  was  when  de- 
mised, subject  only  to  the  deterioration  produced  by  ordi- 
nary wear  and  tear  and  the  reasonable  use  of  it  for  the  purpose 
for  which  it  was  hired.52 

Covenants  as  to  Farming. 

138.  It  is  implied  from  the  letting  of  a  farm  for  agricultural 
purposes  that  the  tenant  will  cultivate  and  use  the  land  ac- 
cording to  the  rules  of  good  husbandry.53     Where  a  contract 
of  a  decedent  is  personal  and  his  performance  of  it  is  of  the 
essence  of  the  contract,  the  contract  dies  with  him,  and  does 
not  give  rise  to  liability  on  the  part  of  his  personal  repre- 
sentatives for  its  execution  subsequent  to  his  death;  but  an 
ordinary  contract  of  a  lease  of  a  farm  is  not  such  a  contract.54 
In  leasing  a  farm  for  agricultural  purposes,  its  cultivation  ac- 
cording to  the  course  of  good  husbandry  is  implied.     An  out- 
going tenant  has  no  right  to  remove  from  the  land  he  has 
occupied  manure  made  on  the  land  from  its  produce  during 
his  occupancy,  and  the  fact  that  he  has  bought  some  hay  and 
some  grain  and  fed  the  grain  so  bought  to  his  horses  will  not 
alter  the  case,  so  long  as  the  manure  so  made  is  commingled 
with  that  made  from  the  produce  of  the  farm.55     There  was. 
a  suit  to  recover  damages.    He  could  have  been  restrained  by 
writ  of  estrepement  under  the  act  of  March  29,  i822.56     A 
tenant  from  year  to  year  is  bound  by  law  to  treat  a  farm  in 
a  husbandman-like  manner  according  to  the  custom  of  the 

51  Collins  v.  Whilldin,  3  Phila.   102. 

52  2  Addison  on  Contracts,  370. 

53  Lewis  v.  Jones,   17  Pa.  262. 

54  Walker's  Est,  6  Pa.  C.  C.  R.  515.     55  Lewis  v.  Tones,  17  Pa.  262. 
56  Harrington  v.  Justice,  2  Clarke,  501. 


INABILITY    OF    TENANT   TO    DISPUTE   TITLE.  47 

country,  and  when  he  does  not,  a  court  of  common  pleas  will 
restrain  him  by  writ  of  estrepement  under  the  said  act  from 
doing  any  injury  to  the  premises  contrary  to  the  custom.  A 
writ  of  estrepement  was  issued  because  the  tenant  was  plowing 
down  sod  and  grass  for  the  purpose  of  planting  the  land  with 
corn,  and  the  court  refused  to  dissolve  the  writ.57  The  fact 
that  a  farm  is  used  as  a  milk  farm,  and  not  strictly  for  agri- 
cultural purposes,  does  not  vary  the  rule  against  the  removal 
of  manure  by  a  tenant.58 

INABILITY   OF  TENANT  TO   DISPUTE  THE  TITLE   OF   HIS 

LANDLORD. 

The  Rule  and  its  Operation. 

139.  As  a  general  rule  a  tenant  is  not  permitted  to  dispute 
his  landlord's  title.59     A  tenant  cannot  resist  his  landlord's 
recovery  in  ejectment  by  virtue  of  an  adverse  title  acquired 
during  his  lease.60     Nor  can  one  who  comes  into  possession 
under  the  tenant.61 

Liability  of  Tenant  to  Forfeit  His  Lease. 

140.  If  a  tenant  disaffirms  or  impugns  the  title  of  his  land- 
lord, the  landlord  may  elect  to  annul  the  lease.62     It  is  based 
on  the  fact  that  every  lease  contains  a  covenant  express  or 
implied,  that  the  lessee  will  do  nothing  to  impugn  the  les- 
sor's right.63 

Case  of  Collusion  with  Tenant. 

141.  An  intruder  can  gain  no  advantage  of  a  landlord  by 
colluding  with  his  tenant,  and  an  adverse  claimant  who  gets 

57  Jones  v.  Whitehead,  4  Clarke,  330. 

58  Wain  v.  Conner,  5  Clarke,  164. 

59  Comyn  on  Landlord  and  Tenant,  519. 

60  Galloway  v.  Ogle,  2  Binney,  468. 

61  Graham  v.  Moore,  4  S.  &  R.  466;  Cooper  v.  Smith,  8  W.  536;  Mc- 
Cleary  v.  Allen,  2  P.  &.  W.  144. 

62  Newman  v.  Rutter,  8  Watts,  51. 

63  Cole  v.  Bolard,  22  Pa.  431, 


48  LANDLORD    AND    TENANT. 

possession  of  the  land  by  tampering  with  his  adversary's  ten- 
ant stands  in  the  tenant's  place  and  cannot  resist  the  land- 
lord's title  where  the  tenant  himself  could  not.64 

Case  of  Fraud  by  the  Landlord. 

142.  When  fraud  has  been  committed  by  the  landlord, 
the  tenant  is  permitted  to  impeach  the  lessor's  title.65     The 
tenant  may  show  that  the  title  of  the  landlord  no  longer 
exists.66 

SEALING  AND  EXECUTION  OF  LEASE,  STAMPS  AND 
RECORDING. 

Where  Landlord  Does  Not  Sign  Lease. 

143.  In  England  it  has  been  held  that  if  a  tenant  executes 
a  lease  containing  covenants  to  pay  rent  and  repair,  but  the 
landlord  does  not  do  so,  and  the  tenant  enters  and  pays  rent, 
and  the  landlord  conveys  away  the  property,  the  purchaser 
cannot  sue  upon  the  lease,  but  if  there  is  no  such  conveyance 
the  tenant  will  be  taken  to  have  waived  his  right  to  an  exe- 
cution of  the  lease  by  the  lessor  as  a  condition  precedent  to 
his  liability  upon  his  covenants.67     A  lessee  accepted  a  lease 
signed  by  himself  alone,  took  possession  and  paid  rent  and  it 
was  held  that  tenant  was  bound.     The  term  of  the  lease  was 
less  than  three  years.68 

Where  Tenant  Does  Not  Sign  Lease. 

144.  If  a  person  who  does  not  execute  a  lease,  but  enters 
and  takes  possession  by  force  of  the  lease,  he  is  deemed  in 
law  to  have  covenanted  to  hold  upon  the  terms  of  the  lease 

64  Stewart  v.  Roderick,  4  W.  &  S.  188;  Prutzman  v.  Ferree,  10  W.  143; 
Dikeman  v.  Parrish,  6  Pa.  210. 

65  Boyer  v.  Smith,  5  Watts,  55;  Brown  v.  Dysinger,  i  Rawle,  407. 

66  Newell  v.  Gibbs,  I  W.  &  S.  496. 

67  2  Addison  on  Contracts,  §  695. 

68  Kaier  v.  Leahy,  15  Pa.  C.  C.  R.  243. 


SEALING   AND    EXECUTION    OF    LEASE,    ETC.  49 

and  to  observe  the  conditions  of  the  lease,  and  the  lessor  may 
distrain  or  bring  an  action  for  the  arrears  of  rent.69 

Kind  of  Seal. 

145.  In  Pennsylvania  an  ink  scroll  or  printed  seal  is  suffi- 
cient to  make  a  sealed  document,  excepting  in  case  of  a  cor- 
poration which  must  use  its  corporate  seal. 

Witnesses  Bequired. 

146.  It  is  not  necessary  to  have  subscribing  witnesses,  but 
it  is  better  and  it  seems  to  be  necessary  in  some  cases,  as 
where  a  party  signs  by  a  mark,  or  in  case  there  are  erasures 
or  interlineations  to  be  noted. 

Erasures  and  Interlineations. 

147.  It  is  better  not  to  have  any  erasures  or  interlineations, 
especially  in  any  material  part  of  the  lease,  but  if  there  are 
any,  they  should  all  be  carefully  noted  above  the  names  of 
the  attesting  witnesses,  otherwise  the  omission  may  prove 
fatal  to  a  recovery  or  a  remedy  under  the  lease. 

Stamps  on  Leases. 

148.  The  act  of  Congress  of  June  13,  1898,  requires  stamps 
as  follows:  lease,  agreement,  memorandum,  on  contract  for 
the   hive,   use   or   rent   of   any   land,   tenement   or   portion 
thereof.     If  for  a  period  of  time  not  exceeding  one  year, 
twenty-five  cents;    exceeding  one  year  and  not  exceeding 
three  years,  fifty  cents;  if  exceeding  three  years  $i.     A  re- 
ceipt for  rent  of  real  estate  which  sets  forth  the  terms  as  for 
a  lease  is  required  to  be  stamped  as  a  lease,  unless  there  is 
a  lease  in  existence  for  the  same  purpose  which  has  been  al- 
ready taxed.70     Where  leases  are  executed  in  duplicate,  each 
must   be   properly    stamped.71     Leases    executed    and    de- 

69  2  Addison  on  Contracts,  694;  Taylor's  Landlord  and  Tenant,  §245; 
Gas.  Co.  v.  Phila.  Co.,  158  Pa.  317. 

70  Treasury  decision,  7  Pa.  Dis.  Rep.  436. 

71  Treasury  decision,  7  Pa.  Dis.  Rep.  453. 

4 


50  LANDLORD   AND   TENANT. 

livered  prior  to  July  i,  1898,  are  exempt  from  taxation.  An 
assignment  of  the  unexpired  term  of  a  lease  is  taxable  on  the 
basis  of  the  term  assigned.72  The  transfer  of  a  lease  is  sub- 
ject  to  taxation  for  the  unexpired  term.73  Leases  of  rights 
of  way  are  subject  to  taxation  under  act  of  June  13,  ^  74 


Recording. 

149.  If  the  lessee  does  not  take  actual  possession  of  the 
demised  premises  there  is  danger  of  the  lease  being  cut  out 
as  to  a  subsquent  grantee  without  notice.76 

72  Treasury  decision,  7  Pa.  Dis.  Rep.  521. 

73  Treasury  decision,  7  Pa.  Dis.  Rep.  573. 

74  Treasury  decision,  7  Pa.  Dis.  Rep.  707. 

75  Aye  v.  Phila.  Co.,  193  Pa.  Rep.  457. 


CHAPTER  II. 

FIXTURES. 

SECTION  SECTION 

150.  Domestic  fixtures.  155.  Notice  to  landlord  upon  con- 

151.  Trade  fixtures.  stable's  sale  of  a  house  as 

152.  Agricultural  fixtures.  a  trade  fixture. 

153.  Fixtures  not  removed  at  the  156.  The     duty     of    placing    fire 

end  of  lease.  escapes  in  Philadelphia. 

154.  Tenant's    fixtures    liable    to 

execution. 

Domestic  Fixtures. 

150.  As  to  domestic  fixtures  there  are  but  few  cases  in  Penn- 
sylvania. According  to  the  ancient  laws  of  England,  a  tenant 
was  denied  the  right  to  remove  fixtures  put  up  for  purposes  of 
ornament  or  convenience,  but  it  was  afterwards  settled  that 
there  were  many  ornamental  fixtures  which  the  tenant  could 
remove,  as  hangings,  looking-glasses,  tapestry,  stoves  and 
grates  fixed  into  the  chimney  with  brickwork,  cupboards  sup- 
ported by  holdfasts,  articles  of  domestic  convenience  slightly 
affixed,  but  the  court  refused  to  extend  the  privilege  of  orna- 
mental fixtures  to  a  conservatory  erected  on  a  brick  founda- 
tion fifteen  inches  deep,  attached  to  the  wall  of  the  dwelling- 
house  and  said  that  it  was  "clear  on  the  one  hand  that  many 
things  of  an  ornamental  nature  may  be  in  a  degree  affixed  and 
yet  during  the  term  may  be  removed ;  and,  on  the  other  hand, 
equally  clear,  there  may  be  that  sort  of  fixing  or  annexation 
which,  though  the  thing  annexed  may  have  been  merely  for 
ornament,  will  yet  make  the  removal  of  it  waste."  It  has 
been  said  that  four  circumstances  are  pointed  out  as  mainly 
essential  to  be  regarded  wherever  the  question  is  whether  a 

51 


52  LANDLORD    AND    TENANT 

fixture  of  an  ornamental  nature  be  removable,  i.  The  mode 
in  which  and  the  extent  to  which  it  is  united  with  the  prem- 
ises. 2,.  Its  nature  and  construction;  as  whether  it  appear 
to  have  been  intended  as  a  temporary  or  as  a  permanent  im- 
provement. 3.  Whether  its  removal  is  likely  to  occasion  any 
considerable  damage  to  the  freehold.  Lastly,  whether  there 
is  any  custom  or  prevalent  usage  applicable  to  the  case  in  ques- 
tion.1 After  reviewing  a  number  of  cases  outside  of  Penn- 
sylvania it  has  been  stated  that  domestic  fixtures  useful  or 
ornamental  are  removable  by  a  tenant  if  their  removal  does 
not  materially  injure  the  dwelling.  That  at  the  present  time 
the  same  favors  are  shown  for  domestic  fixtures  as  those 
erected  for  trade  purposes,  although  formerly  the  latter  re- 
ceived the  greater  favor.2  If  it  is  to  be  held  that  domestic 
fixtures  are  to  be  considered  like  trade  fixtures  such  result  will 
be  very  much  to  the  prejudice  and  injury  of  landlords.  Take 
for  instance  the  case  of  a  finely  constructed  mansion-house 
and  put  it  in  the  same  position  as  a  factory  building,  the 
difference  will  be  very  marked.  Whilst  the  walls,  woodwork 
and  floors  of  the  factory  building  can  be  largely  broken  into 
for  the  purpose  of  placing  fixtures  and  machinery,  it  might, 
in  the  case  of  the  mansion,  be  ruinous  to  a  fine  wall,  the  floors, 
or  woodwork  to  drive  nails  or  to  cut  into  them  in  any  way. 
A  fine  mansion  is  like  a  piece  of  fine  china  or  glassware.  If 
the  same  is  broken  the  beauty  is  impaired  and  repairing  will 
not  remedy  the  injury.  Tenants  now  have  liberal  rights  as 
to  the  removal  of  domestic  fixtures,  and,  so  much  so,  that 
landlords  may  need  protection  in  their  leases,  and,  consider- 
ing that  trade  fixtures  are  favored  merely  on  account  of  trade, 
there  is  no  such  reason  why  domestic  fixtures  should  be  so 
more  than  they  were  at  common  law. 

Trade  Fixtures. 

151.  In  Pennsylvania,  generally,  great  liberality  has  been 

1  Vol.  2,  part  I  (8  Am.  Ed.),  Smith's  Leading  Cases,  210,  211. 

2  8  Am.  &  Eng.  Ency.  of  Law,  57. 


FIXTURES.  53 

shown  by  the  courts  in  permitting  tenants  to  remove  trade 
fixtures.  However,  it  is  to  be  noted  in  the  case  of  the 
renting  of  a  hotel  property,  the  master  found  that  flooring, 
a  frame  addition  used  as  a  summer  dining-room,  an  elevation 
to  the  house,  comprising  three  bed  chambers  and  a  carving 
room,  a  cupboard,  hitching  posts  and  rails,  fences,  the  ma- 
terial used  in  altering  shedding  into  a  carriage-house,  regis- 
ters and  slate  around  the  same,  double  glass  doors,  gas  pipe, 
sinks  and  tin  spouting,  were  all  permanent  improvements  at- 
tached to  the  realty,  and  which  the  tenant  could  not  remove. 
On  exceptions  the  finding  of  the  master  was  affirmed  by  the 
court  below,  and  also  by  the  Supreme  Court  on  appeal.3  A 
range  was  erected  for  the  business  purposes  of  a  restaurant. 
It  was  not  affixed  to  the  freehold  except  by  being  built  against 
one  of  the  walls.  There  was  no  evidence  that  it  was  intended 
to  be  a  part  of  the  realty.  It  was  held  to  be  the  personal 
property  of  the  tenant  and  that  he  had  the  right  to  sell  it.4 
Fixtures  had  been  annexed  to  the  freehold  in  a  permanent 
manner  by  a  tenant,  and  the  Supreme  Court  remarked  that 
under  the  earlier  decisions,  physical  annexation  was  the  test, 
but  this  doctrine  no  longer  prevails.  "That  the  true  rule  to  be 
deduced  from  the  authorities  is,  that  it  is  not  the  character 
of  the  physical  connection  with  the  realty  which  constitutes 
the  criterion  of  annexation,  but  it  is  the  intention  to  annex. 
When  a  tenant  puts  in  fixtures  or  conveniences  for  his  own 
comfort,  the  law  raises  no  presumption  that  he  intended  them 
as  permanent  improvements,  to  be  left  for  the  benefit  of  his 
landlord,  and,  as  a  general  rule,  he  will  be  entitled  to  remove 
them  during  his  term.  For  any  injury  to  the  freehold  by 
reason  of  such  removal,  he  is,  of  course,  liable  to  the  land- 
lord for  damages."  5  An  engine  was  fastened  to  the  freehold 
and  the  boilers  were  masoned  in  and  covered  with  brick- 


3  Kenney's  Ap.,  22  W.  N.  C.  89. 

4  Townsend  v.  Underbill,  6  Pa.  C.   C.  R.  544. 

5  Seeger  v.  Pettit,  77  Pa.  437. 


54  LANDLORD    AND   TENANT. 

work.     The  court  regarded  them  as  fixtures  which  the  tenant 
could  have  removed  at  the  end  of  his  lease.6 

Agricultural  Fixtures. 

152.  The  ancient  English  doctrine  was  that  the  rule  as  to 
trade  fixtures  did  not  extend  to  an  agricultural  tenant,  but 
that   distinction   to   some   extent   has   been   repudiated   as 
not  applicable  to  the  circumstances  of  this  country.    In  Penn- 
sylvania it  has  lately  been  held  that  a  tenant  for  years  of  farm 
lands  comes  within  the  rule  that  a  tenant  for  years  can  remove 
trade  fixtures.7 

Fixtures  Not  Removed  at  the  End  of  Lease. 

153.  If  a  tenant  upon  the  expiration  of  his  lease  does  not 
remove  his  fixtures,  they  become  the  property  of  the  landlord. 
It  has  been  held  that  if  a  tenant  at  the  close  of  his  term  re- 
news his  lease,  he  should  take  care  to  reserve  his  rights  to 
remove  fixtures  as  he  had  under  the  old  tenancy,  and  that 
where  a  tenant  sells  his  fixtures  to  an  incoming  tenant,  he 
should  obtain  his  landlord's  consent.8 

Tenant's  Fixtures  Liable  to  Execution. 

154.  A  tenant's  trade  fixtures  are  liable  to  be  sold  at  sher- 
iff's sale  and  severed  by  the  purchaser.     A  boiler  and  engine 
being  movable  fixtures  were  so  liable.9 

Notice  to  Landlord  upon  Constable's  Sale  of  a  House  as  a  Trade 
Fixture. 

155.  The  object  of  a  lease  was  to  dig  for  flint;  the  tenants 
erected  a  frame  building,  connecting  it  with  an  old  mill.     A 
constable  levied  upon  the  building  as  a  movable  trade  fixture 
or  as  personal  property ;  before  the  constable  sold,  the  tenant 

6  Davis  v.    Moss,   38   Pa.   346;    Hey  r.   Bruner,  61    Pa.   87;    Hill   v. 
Sewald,  53  Pa.  271. 

7  Carver  v.  Gough,  153  Pa.  225. 

8  Taylor's  Landlord  and  Tenant,  §§551,  552,  553. 

9  Hey  v.  Bruner,  61  Pa.  87;    Kile  v.  Giebner,  114  Pa.  381. 


FIXTURES.  55 

surrendered  his  term  to  the  landlord,  who  had  no  notice  of 
the  levy.  Afterward  the  constable  sold  the  house,  but  the 
purchaser  could  not  remove  it.  The  landlord  should  have 
had  notice  of  the  levy.  The  building  was  prima  facie  part 
of  the  real  estate,  and  it  put  a  creditor  of  the  tenant  upon 
his  inquiry  as  to  its  character.10 

The  Duty  of  Placing  Fire  Escapes  in  Philadelphia. 

156.  The  act  of  June  3,  1883,  in  view  of  prior  decisions  of 
the  courts,  changes  the  law  of  June  n,  1879,  so  that  the 
department  of  factory  inspectors  must  proceed  against  the 
owner  in  fee  or  for  life,  and  not  the  tenants  of  buildings  not 
properly  supplied  with  fire  escapes.11 

10  Thropp's  Ap.,  70  Pa.  395. 

11  In  re  Fire  Escapes,  2  Pa.  D.  R.  298;  In  re  Fire  Escapes,  12  Pa. 
C.  C  R.  525. 


CHAPTER  III. 

SECURITY  FOR  RENT. 

SECTION  SECTION 

157.  Where  surety  is  liable  to  be  162.  Discharge  of  surety  by  varia- 

sued  at  once.  tion  of  lease. 

158.  Covenant  of  suretyship  runs  163.  Discharge  of  surety  if  land- 

with  the  land.  lord  allows  goods  distrained 

159.  Tenant   bound   to   exonerate  to  be  removed. 

surety.  164.  Demand  of  rent  by  landlord. 

160.  Position  of  surety  in  case  of  165.  Discharge  of  surety  by  giving 

a  tenant  holding  over.  time. 

161.  Alteration     of     lease     as     it  166.  Surety   liable   under   a    void 

affects  surety.  lease. 

Where  Surety  is  Liable  to  be  Sued  at  Once. 

157.  By  an  agreement  the  defendant  covenanted  to  be  re- 
sponsible for  the  performance  of  the  terms  and  conditions 
of  the  lease  on  the  part  of  the  lessee.     The  lease  contained 
a  covenant  to  pay  a  certain  money  rent  at  stipulated  times ; 
it  was  held  that  the  defendant  was  not  a  guarantor  merely, 
but  a  surety;  therefore,  liable  for  the  rent  at  once  without 
showing  the  tenant's  insolvency.1 

Covenant  of  Suretyship  Buns  with  the  Land. 

158.  A  covenant  of  suretyship  runs  with  the  land  and  may 
be  sued  on  by  the  assignee  of  the  reversion.2 

Tenant  Bound  to  Exonerate  Surety. 

159.  As  soon  as  the  surety's  obligation  to  pay  becomes 
absolute,  he  is  entitled  in  equity  to  require  the  principal 
debtor  to  exonerate  him,  and  he  may  at  once  file  a  bill  to 

1  Korn  v.  Hohl,  80  Pa.  333;  Reigart  v.  White,  52  Pa.  438. 

2  Taylor  v.  Kennelly,  14  W.  N.  C.  124. 

56 


SECURITY    FOR    RENT.  57 

compel  an  exoneration,  although  the  creditor  has  not  de- 
manded payment  from  him.3 

Position  of  Surety  in  Case  of  a  Tenant  Holding  Over. 

1 60.  A  surety  became  bound  for  a  tenant's  performance 
of  contract  of  lease  for  one  year,  the  rent  being  payable 
monthly,  and  if  the  tenant  continued  after  the  term,  the  con- 
tract to  continue  for  another  year  and  so  on  from  year  to  year 
until  legal  notice  was  given  for  removal.     Held,  if  the  tenant 
held  over  the  year,  the  surety  was  responsible  for  the  subse- 
quent rent.4     A  lease  was  for  a  year,  either  party  might  de- 
termine it  at  the  end  of  the  term  by  giving  a  month's  pre- 
vious notice.     A  surety  for  the  lessee  gave  due  notice  to  the 
lessor  that  he  would  not  be  bound  beyond  the  end  of  the 
current  year.     The  lessee  held  over;  the  surety  died  before 
the  end  of  the  succeeding  year.     Held,  his  estate  was  not 
liable  for  the  rent  during  that  year;  that  it  was  inequitable  to< 
the  surety  to  continue  the  tenant  for  another  year  after  the 
notice.     Equity  often  relieves  a  surety  when  the  principal 
would  not  be  relieved.     The  death  of  the  surety  was  con- 
sidered in   deciding  the   case.5     A   contract   of  suretyship, 
binding  upon  heirs,  executors  and  administrators  during  a 
present  or  future  period  will  not  be  revoked  by  the  death  of 
the  surety.6 

Alteration  of  Lease  as  it  Affects  Surety. 

161.  When  the  parties  to  a  contract  materially  alter  it, 
without  the  consent  of  the  surety,  the  latter  will  be  released 
from  liability.     There  must  be  a  binding  agreement;  mere 
indulgence  will  not  be  sufficient.7     The  mere  fact  that  the 
landlord  occupied  part  of  the  demised  premises  for  a  portion- 

3  Oil  Co.  v.  Mining  Co.,  66  Pa.  375. 

4  Coe  v.  Vogdes,  71  Pa.  383. 

5  Pleasanton's  Ap.,  75  Pa.  344. 

6  Bank  v.  Yard,  150  Pa.  351. 

7  Whelen  v.  Boyd,  114  Pa.  228. 


58  LANDLORD   AND   TENANT. 

of  the  year  with  the  consent  of  the  tenant,  no  change  hav- 
ing been  made  in  the  contract,  does  not  release  the  surety.8 

Discharge  of  Surety  by  Variation  of  Lease. 

162.  In  such  case  the  tenant  will  be  discharged.9     A  re- 
duction of  rent  will  not  discharge  him.10 

Discharge  of  Surety  if  Landlord  Allows  Goods  Distrained  to  be  Re- 
moved. 

163.  If  a  landlord  after  distraining  on  goods,  allow  the  ten- 
ant to  remove  them,  the  surety  will  be  discharged  to  the  value 
of  the  goods  distrained.11    If  the  goods  should  be  eloigned  by 
the  tenant  without  any  negligence  upon  the  part  of  the  land- 
lord or  the  bailiff,  the  surety  will  not  be  discharged.12 

Demand  of  Bent  by  Landlord. 

164.  No  previous  demand  of  the  landlord  for  the  rent  is 
necessary.13 

Discharge  of  Surety  by  Giving  Time. 

165.  A  surety  will  be  discharged  by  an  agreement  of  the 
landlord  which  can  be  enforced  at  law  or  in  equity,  whereby 
lie  extends  the  time  of  payment  for  any  definite  period,  but 
a  mere  consent  to  forbear  for  a  loose  and  uncertain  period 
will  not  discharge  the  surety.14 

Surety  Liable  under  a  Void  Lease. 

1 66.  The  defendant  contended  that  a  lease  which  he  signed 
as  surety,  was  not  in  law  a  lease  for  five  years,  because  it  was 
not  signed  by  the  lessor  and  that  for  that  reason  he  was  not 

8  Medary  v.  Gathers,  161  Pa.  87. 

9  Barnes  v.  Carney,  6  W.  N.  C.  448. 

10  Flanigan  v.  Rossiter,  7  W.  N.  C.  180;  Dickson  v.  Wolf,  5  W.  N. 
C.  37- 

11  McNamee  v.  Cresson,  3  W.  N.  C.  450. 

12  Myers  v.  Hulseman,  3  W.  N.  C.  487. 

13  Haynes  v.  Synnott,  34  W.  N.  C.  107. 

14  Bank  v.  Legrand,  103  Pa.  309. 


SECURITY    FOR    RENT.  59 

liable  as  surety.  The  defendant's  obligation  was  "to  be  re- 
sponsible to  the  above-named  lessor  for  the  true  and  faithful 
performance  of  the  above  contracts,  covenants  and  agree- 
ments on  the  part  of  the  above-named  lessee,  for  the  full  time 
in  which  he  may  retain  possession  of  said  premises  under 
the  above  agreement."  The  lessee  entered  under  the  lease. 
It  was  held  that  so  long  as  the  tenant  remained  in  possession, 
the  surety  was  liable.15 

15  Duffee  v.  Mansfield,  141  Pa.  507. 


K' 


CHAPTER  IV. 


TRANSFERS    OF    INTERESTS    OF    LANDLORDS    IN    DEMISED 

PREMISES. 


SECTION 

167.  By  a  sale  and  conveyance  of 

the  demised  premises. 

168.  By    an    assignment    of    the 

landlord  for  the  benefit  of 
creditors. 

169.  By  a  conveyance  to  a  trustee 

to  collect  rents,  etc. 

170.  By  a  judicial  sale. 

171.  Notice  of  affirmation  of  lease 

to  be  given  to  tenant. 


SECTION 

172.  When  lease  antedates  incum- 

brance,  lease  preserved. 

173.  When  rent  is  paid  in  advance. 

174.  Rent  before  and  after  date  of 

sheriff's  deed. 

175.  The  right  of  a  purchaser  at 

an    orphans'    court    sale    to 
rents  or  possession. 

176.  Transfer   by   the   will  of   the 

landlord. 

177.  Transfer  by  descent. 


By  a  Sale  and  Conveyance  of  the  Demised  Premises. 

167.  Upon  the  delivery  of  a  deed  to  the  vendee  he  becomes 
the  landlord  of  the  vendee's  tenants  and  entitled  to  receive  the 
rents  due  after  such  delivery.  He  should  give  notice  to  the 
tenants  of  the  delivery  of  the  deed  and  request  them  to  pay 
to  him  the  future  rent.  If  the  vendor  has  a  written  lease  it 
should  be  assigned  and  delivered  to  the  vendee.  By  a  cus- 
tom rents  of  tenants  are  apportioned  to  the  date  of  settle- 
ment. It  will  be  well  in  an  agreement  for  purchase  to  have 
it  stated  that  the  rents  are  to  be  apportioned  to  a  date  of 
settlement;  if  such  is  the  intention.  On  March  22,  1899,  the 
plaintiffs  agreed  to  sell  a  lot  to  the  defendants  on  April  22, 
1899,  subject  to  all  the  terms  of  the  lease,  and  on  April  i, 
1899,  the  rent  for  the  quarter  then  beginning  was  paid  to  the 
plaintiff.  The  defendant  claimed  that  he  was  entitled  to  rent 
for  May  and  June.  When  the  defendant  got  his  deed  he  knew 
60 


TRANSFERS   OF   INTERESTS.  61- 


there  would  be  no  rent  until  July  i,  1899.  I*  was  hdd  that  the 
vendor  was  not  liable  to  pay  the  vendee  any  part  of  the  rent 
received  April  i.  It  was  held  that  rent  was  not  apportion- 
able  at  law  or  in  equity.  It  does  not  accrue  de  die  in  diem. 
The  rent  belonged  to  the  vendor,  as  the  legal  title  was  in 
him  when  it  accrued.  That  the  vendor  is  a  trustee  for  his 
vendee  to  convey  to  the  vendee,  makes  no  difference.1 

By  an  Assignment  of  the  Landlord  for  the  Benefit  of  Creditors. 

1  68.  In  the  deed  of  assignment  there  is  usually  inserted  a 
clause  providing  for  the  sale  of  the  property  of  the  assignor. 
When  such  sale  is  made  and  the  deed  delivered  to  purchaser, 
the  purchaser  becomes  the  landlord  of  the  assignor's  tenants, 
but  until  such  sale  and  conveyance  the  assignor  can  remain  in 
possession  of  real  estate  and  collect  the  rents.  The  assignee 
is  not  chargeable  with  the  rental  thereof.2 

By  a  Conveyance  to  a  Trustee  to  Collect  Bents,  etc. 

169.  In  such  case  the  tenant  should  see  that  the  trustee 
has  express  or  implied  authority  to  collect  the  rent,  etc.     It 
may  happen  in  the  course  of  time  that  the  power  of  the 
trustee  to  collect  the  rents  will  cease  in  a  change  of  the  trusts. 
A  copy  of  the  trusts  of  the  deed  can  be  obtained  and  referred 
to  from  time  to  time  to  see  if  the  trusts  still  continue. 

By  a  Judicial  Sale. 

170.  When  a  purchaser  at  sheriff's  sale  gives  notice  for 
possession  it  is  provided  that,  "Whenever  any  lands  or  tene- 
ments shall  be  sold  by  virtue  of  any  execution  as  aforesaid, 
the  purchaser  of  such  estate  may,  after  the  acknowledgment 
of  a  deed  therefor  to  him  by  the  sheriff,  give  notice  to  the 
defendant,  as  whose  property  the  same  shall  have  been  sold, 
or  to  the  persons  in  possession  of  such  estate  under  him,  by 
title  derived  from  him  subsequently  to  the  judgment  under 

1  Singer  v.  Solomon,  vol.  56,  Leg.  Int.  315,  8  Pa.  Dis.  402. 

2  Detwiler's  Ap.,  96  Pa.  323;  Breneman's  Est.,  150  Pa.  494. 


62  LANDLORD    AND    TENANT. 

which  the  same  were  sold,  and  require  him  or  them  to  sur- 
render the  possession  thereof  to  him  within  three  months 
from  the  date  of  such  notice;3  and  it  is  provided  that,  "If 
any  lands  or  tenements  shall  be  sold  upon  execution,  as  afore- 
said, which  at  the  time  of  such  sale,  or  afterwards,  shall  be  held 
or  possessed  by  a  tenant  or  lessee,  or  person  holding,  or 
claiming  to  hold  the  same  under  the  defendant  in  such  execu 
tion,  the  purchaser  of  such  lands  or  tenements  shall,  upon  re- 
ceiving a  deed  for  the  same,  as  aforesaid,  be  deemed  the  land 
lord  of  such  tenant,  lessee,  or  other  person,  and  shall  have  the 
like  ^remedies  to  recover  any  rents  or  sums  accruing  subse- 
quently to  the  acknowledgment  of  a  deed  to  him,  as  aforesaid, 
whether  such  accruing  rent  may  have  been  paid  in  advance 
or  not,  if  paid  after  the  rendition  of  the  judgment  on  which 
sale  was  made,  as  such  defendant  might  have  had,  if  no  such 
sale  had  been  made."  4  In  case  a  demised  property  is  sold  at 
sheriff's  sale  upon  execution,  the  purchaser  has  the  option 
either  to  disaffirm  the  lease  by  giving  three  months'  notice 
to  quit  from  the  date  of  the  notice,  or  to  affirm  the  lease,  and 
avail  himself  of  the  rights  of  the  former  owner  to  recover  the 
rent.  If  the  purchaser  does  not  choose  to  affirm  the  lease, 
he  may  recover  for  use  and  occupation  during  the  time  the 
tenant  holds  over.5 

Notice  of  Affirmation  of  Lease  to  be  Given  to  Tenant. 

171.  In  case  the  lease  is  affirmed,  notice  should  be  given 
immediately  to  the  tenant. 

When  Lease  Antedates  Incumbrance,  Lease  Preserved. 

172.  A  purchaser  at  sheriff's  sale  under  a  judgment  on  a 
mortgage,  by  giving  notice  to  quit  to  a  tenant  holding  under 
a  lease  subsequent  to  the  mortgage,  disaffirms  the  lease  and 
determines  the  tenancy ;  but  in  case  of  a  lease  made  before  a 

3  Act  June  16,  1836,  P.  &  L.  Dig.  1987;  P.  L.  755,  §  105. 

4  Act  June  16,  1836,  P.  &  L.  Dig.  1993;  P.  L.  755,  §  119. 

5  Stockton's  Ap.,  64  Pa.  58. 


TRANSFERS    OF    INTERESTS.  63 

mortgage,  the  purchaser  takes  as  assignee  of  the  reversion, 
and  the  relation  necessarily  continues.6 

When  Rent  is  Paid  in  Advance. 

173.  The  lease  may  be  disaffirmed,  although  the  rent  has 
been  paid  in  advance.7 

Rent  Before  and  After  Date  of  Sheriff's  Deed. 

174.  The  purchaser,  in  case  he  elects  to  affirm  the  lease,  is 
entitled  to  the  rent  accruing  after  the  acknowledgment  of  the 
sheriff's  deed.8     Rent  accruing  between  the  date  of  the  sher- 
iff's sale  and  the  acknowledgment  of  the  sheriff's  deed  can 
be  attached  as  the  defendant's.9     Such  rent,  though  payable 
in  advance  will  not  go  to  the  purchaser.10 

The  Right  of  a  Purchaser  at  an  Orphans'  Court  Sale  to  Rents  or 
Possession. 

175.  By  the  act  of  April,  1849,  it  i§  provided  that  after 
the  confirmation  of  the  sale  and  execution,  and  acknowledg- 
ment of  the  deed,  a  purchaser  at  an  orphans'  court  sale  shall 
have  the  right  to  obtain  possession  of  the  premises  by  pro- 
ceeding in  the  same  manner  as  provided  in  relation  to  sheriff's 
sales.     The  decree  confirming  the  orphans'  court  sale  does 
not  operate  of  itself  to  transfer  the  title,  and  hence  the  title 
of  the  heirs  is  not  divested  by  such  sale  until  the  purchaser 
has  complied  with  the  terms  of  sale  and  received  his  deed  for 
the  premises  purchased.     Wherefore,  the  heirs  of  a  decedent 
are  entitled  to  the  rents  accruing  between  the  date  of  con- 
firmation of  an  orphans'  court  sale  and  the  date  when  the  deed 
is  delivered  to  the  purchaser;  and  the  payment  of  such  rents 
to  the  purchaser  is  no  defence  to  an  action  by  the  heirs  there- 
for.11 

6  Hemphill  v.  Tevis,  4  W.  &  S.  535. 

7  Market  Co.  v.  Lutz,  4  Phila.  322. 

8  Garrett  v.  Dewart,  43  Pa.  342. 

9  Bank  v.  Hanson,  i  W.  N.  C.  613. 

10  Bank  v.  Ege,  9  W.  436;  Fullerton  v,  Shauffer,  12  Pa.  220. 

11  Strange  v.  Austin,  134  Pa.  96. 


64  LANDLORD    AND    TENANT. 

Transfer  by  the  Will  of  the  Landlord. 

176.  In  case  a  landlord  should  die  leaving  a  will  and 
thereby  devising  real  estate  directly  and  absolutely  to  devisees, 
they  will  become  landlords  in  the  place  of  the  testator  and 
will  be  entitled  to  collect  rent  falling  due  after  his  decease. 
However,  in  case  such  devisees  should  be  minors,  they  should 
have  a  guardian  appointed  to  act  for  them.     In  case  such  de- 
visees should  only  have  a  life  estate,  then  those    entitled  to 
the  remainder  will  have  the  right  to  the  rents  upon  his  de- 
cease.    In  case  of  a  devise  to  trustees  who  will  be  entitled 
to  the  rents  it  should  be  ascertained  when  such  rights  will 
terminate. 

Transfer  by  Descent. 

177.  In  case  a  landlord  dies  without  a  will,  a  tenant  will 
have  to  pay  his  rent  to  his  heirs,  according  to  their  rights 
under  the  intestate  laws.     Consequently,   it   becomes   im- 
portant to  consider  such  laws. 

The  act  of  April  8,  i833,12  provides  as  follows: 

WIDOW  AND  ISSUE  (Sec.  I,  Art.  I). — "Where  such  in- 
testate shall  leave  a  widow  and  issue,  the  widow  shall  be  en- 
titled to  one-third  part  of  the  real  estate  for  the  term  of  her 
life,  and  to  one-third  part  of  the  personal  estate  absolutely." 

WIDOW  AND  COLLATERAL  HEIRS  (Sec.  i,  Art.  II). — 
"Where  such  intestate  shall  leave  a  widow  and  collateral 
heirs,  or  other  kindred,  but  no  issue,  the  widow  shall  be  en- 
titled to  one-half  part  of  the  real  estate,  including  the  man- 
sion house  and  buildings  appurtenant  thereto,  for  the  term 
of  her  life,  and  to  one-half  part  of  the  personal  property 
absolutely." 

HUSBAND  AND  HEIRS  (Sec.  i,  Art.  III). — "Where  such 
intestate  shall  leave  a  husband,  he  shall  take  the  whole  per- 
sonal estate,  and  the  real  estate  shall  pass  as  hereinbefore 
provided,  saving  to  the  husband  his  right  as  tenant,  by  the 

12  i  P.  &  L.  Dig.  2407;  P.  L.  1833,  315. 


TRANSFERS    OF    INTERESTS.  65 

curtesy  which  shall  take  place,  although  there  be  no  issue  of 
the  marriage,  in  all  cases  where  the  issue,  if  any,  would  have 
inherited." 

INTEREST  OF  LINEAL  DESCENDANTS  (Sec.  2). — "That  sub- 
ject to  the  estates  and  interests  hereinbefore  given  to  the 
widow  or  surviving  husband,  if  any,  the  real  estate  of  such 
intestate  shall  descend  to,  and  personal  estate  not  otherwise 
hereinbefore  disposed  of,  shall  be  distributed  among  his 
issue,  according  to  the  following  rules  and  order  of  succes- 
sion, viz. :" 

CHILDREN  ONLY  (Sec.  2,  Art.  I). — "If  such  intestate  shall 
leave  children,  but  no  other  descendant  being  the  issue  of  a 
deceased  child,  the  estate  shall  descend  to  and  be  distributed 
among  such  children." 

GRANDCHILDREN  ONLY  (Sec.  2,  Art.  II). — "If  such  in- 
testate shall  leave  grandchildren  or  other  descendant  being 
the  issue  of  a  deceased  grandchild,  the  estate  shall  descend 
to  and  be  distributed  among  such  grandchildren." 

OTHER  LINEAL  DESCENDANTS  IN  SAME  DECREE  (Sec.  2, 
Art.  III). — "If  such  intestate  shall  leave  descendants  in  any 
other  degree  of  consanguinity,  however  remote  from  him, 
and  all  in  the  same  degree  of  consanguinity  to  him,  the  estate 
shall  descend  to  and  be  distributed  among  such  descendants." 
DESCENDANTS  IN  DIFFERENT  DEGREES  (Sec.  2,  Art.  IV). 
— "If  such  intestate  shall  leave  descendants  in  different  de- 
grees of  consanguinity  to  him,  the  more  remote  of  them 
being  the  issue  of  a  deceased  child,  grandchild  or  other  de- 
scendant, the  estate  shall  descend  to  and  be  distributed 
among  them  as  follows,  viz. :" 

CHILDREN  AND  GRANDCHILDREN  (A). — "Each  of  the 
children  of  such  intestate  shall  receive  such  share  as  such 
child  would  have  received,  if  all  the  children  of  the  estate, 
who  shall  then  be  dead,  leaving  issue,  had  been  living  at  the 
death  of  the  intestate." 

GRANDCHILDREN  AND  GREAT-GRANDCHILDREN,  ETC.  (B). 
— "Each  of  the  grandchildren,  if  there  shall  be  no  children, 
5 


66  LANDLORD    AND    TENANT. 

in  like  manner  shall  receive  such  share  as  he  or  she  would 
have  received  if  all  the  other  grandchildren  who  shall  then  be 
dead,  leaving  issue,  had  been  living  at  the  death  of  the  in- 
testate, and  so  in  like  manner  to  the  remotest  degree." 

THE  ISSUE  OF  DESCENDANTS  TO  TAKE  BY  REPRESENTA- 
TION (C). — "In  every  such  case,  the  issue  of  such  deceased, 
grandchild  or  other  descendant,  shall  take  by  representation 
of  their  parents  respectively,  such  share  only  as  would  have 
descended  to  such  parent,  if  they  had  been  living  at  the  death 
of  the  intestate." 

INTEREST  OF  FATHER  AND  MOTHER  (Sec.  3). — "In  default 
of  issue  as  aforesaid,  and  subject  also  as  aforesaid  to  the 
estates  and  interests  hereinbefore  given  to  the  widow  or  sur- 
viving husband,  if  any,  the  real  estate  shall  go  to  the  father 
and  mother  of  such  intestate,  during  their  joint  lives,  and  the 
life  of  the  survivor  of  them;  and  the  personal  estate  not  other- 
wise hereinbefore  disposed  of,  shall  be  vested  in  them  abso- 
lutely, or  if  either  the  father  or  mother  be  dead  at  the  time 
of  the  death  of  the  intestate,  the  parent  surviving  such  in- 
testate shall  enjoy  such  real  estate  during  his  or  her  life,  and 
such  personal  property  absolutely." 

INTEREST  OF  BROTHERS  AND  SISTERS  AND  THEIR  DE- 
SCENDANTS (Sec.  4). — "In  default  of  issue  as  aforesaid,  and 
subject  to  the  estates  and  interests  hereinbefore  given  to  the 
widow  or  surviving  husband,  father  and  mother,  of  the  in- 
testate, if  any,  the  real  estate  shall  descend  to,  and  the  per- 
sonal estate  not  otherwise  hereinbefore  disposed  of,  shall  be 
distributed  among  collateral  heirs  and  kindred  of  such  in- 
testate, according  to  the  following  rules  and  order  of  suc- 
cession, viz.:" 

BROTHERS  AND  SISTERS  OF  THE  WHOLE  BLOOD  (Sec.  4. 
Art.  I). — "If  such  intestate  shall  leave  brothers  and  sisters 
or  either  of  the  whole  blood,  and  no  nephew  or  niece  being 
the  issue  of  a  deceased  brother  or  sister  of  the  whole  blood, 
the  real  estate  shall  descend  to  and  vest  in  such  brothers 
and  sisters." 


'"  .    .  TRANSFERS  OF  INTERESTS.  67 

CHILDREN  OF  SUCH  BROTHERS  AND  SISTERS  DECEASED 
(Sec.  4,  Art.  II). — "If  such  intestate  shall  leave  neither 
brother  nor  sister  of  the  whole  blood,  but  nephews  or  nieces 
being  the  children  of  such  deceased  brother  or  sister,  the  real 
estate  shall  descend  to  and  vest  in  such  nephews  and 
nieces." 

BROTHERS  AND  SISTERS  OF  THE  WHOLE  BLOOD  AND 
CHILDREN  OF  SUCH  DECEASED  (Sec.  4,  Art.  III). — "If  such 
intestate  shall  leave  brothers  and  sisters  of  the  whole  blood, 
and  also  nephews  or  nieces  being  the  children  of  any  such 
deceased  brother  or  sister,  the  real  estate  shall  descend  to 
and  vest  in  such  brothers  and  sisters  and  nephews  and  nieces 
as  follows,  viz. :  Every  such  brother  and  sister  shall  receive 
such  share  as  he  or  she  would  have  received,  if  all  the 
brothers  and  sisters  who  shall  then  be  dead,  leaving  children, 
had  been  living  at  the  death  of  the  intestate,  and  such 
nephews  and  nieces  shall  take  by  representation  of  their 
parents  respectively,  such  share  only  as  would  have  de- 
scended to  such  parents  if  they  had  been  living,  at  the  death 
of  the  intestate." 

OTHER  DESCENDANTS  OF  SUCH  BROTHER  OR  SISTER  (Sec. 
4,  Art.  IV). — "If  such  intestate  shall  leave  neither  brother 
nor  sister  of  the  whole  blood,  nor  any  nephew  or  niece,  being 
the  child  of  such  deceased  brother  or  sister,  the  real  estate 
shall  descend  to  and  vest  in  the  next  of  kin  of  such  intestate, 
being  the  descendants  of  his  brothers  and  sisters  of  the  whole 
blood." 

PERSONAL  ESTATE,  BROTHERS  AND  SISTERS  OF  THE 
WHOLE  AND  HALF  BLOOD  (Sec.  4,  Art.  V). — "The  personal 
estate  of  such  intestate  not  otherwise  hereinbefore  disposed 
of,  shall  in  the  several  cases  mentioned  in  this  section,  be 
distributed  among  the  brothers  and  sisters  of  the  intestate, 
and  their  issue  in  like  manner  in  each  of  the  said  cases  as  is 
provided  for  the  descent  and  division  of  the  real  estate  of  the 
intestate,  but  without  any  distinction  of  blood." 

IN  DEFAULT  OF  PERSONS  ENTITLED  TO  REAL  ESTATE  AS 


68  LANDLORD    AND    TENANT. 

BEFORE,  SAME  TO  GO  TO  FATHER  AND  MOTHER  (Sec.  5). — "/n 
default  of  issue,  and  brothers  and  sisters  of  the  whole  blood 
and  descendants  as  aforesaid,  and  subject  to  the  estates  and 
interests  hereinbefore  given  to  the  widow  or  surviving  hus- 
band, if  any,  the  real  estate  shall  go  to  and  be  vested  in  the 
father  or  mother  of  the  intestate,  or  if  both  be  living  at  the 
time  of  his  death,  in  the  father  and  mother,  for  such  estate 
as  the  said  intestate  had  therein." 

IN  DEFAULT  OF  SUCH,  REAL  ESTATE  TO  GO  TO  BROTHERS 
AND  SISTERS  OF  THE  HALF  BLOOD  (Sec.  6). — "In  default  of 
issue  and  brothers  and  sisters  of  the  whole  blood  and  their 
descendants,  and  also  of  father  and  mother,  competent  by 
this  act,  to  take  an  estate  of  inheritance  therein,  the  real 
estate  of  such  intestate,  subject  to  the  life  estates  herein- 
before given,  if  any  shall  descend  to  and  be  vested  in  the 
brothers  and  sisters  of  the  half  blood  of  the  intestate  and 
their  issue  in  like  manner  respectively,  as  is  hereinbefore  pro- 
vided for  the  case  of  brothers  and  sisters  of  the  whole  blood 
and  their  issue." 

THE  NEXT  OF  KIN  (Sec.  7). — "In  default  of  all  persons 
hereinbefore  described,  the  real  and  personal  estate  of  the 
intestate  shall  descend  to  and  be  distributed  among  the  next 
of  kin  to  such  intestate." 

REPRESENTATION  AMONGST  COLLATERALS  LIMITED  (Sec. 
8). — "Provided,  That  there  shall  be  no  representation  ad- 
mitted amongst  collaterals  after  brothers'  and  sisters'  chil- 
dren." 

INHERITANCE  OF  REAL  ESTATE  TO  PERSONS  OF  THE  BLOOD 
OF  THE  ANCESTORS  (Sec.  9). — "Provided  also,  That  no  person 
who  is  not  of  the  blood  of  the  ancestors  or  other  relations 
from  whom  any  real  estate  descended,  or  by  whom  it  was 
given  or  devised  to  the  intestate,  shall  in  any  cases  before 
mentioned,  take  any  estate  of  inheritance  therein,  but  such 
real  estate  subject  to  such  life  estate  as  may  be  in  existence 
by  virtue  of  this  act,  shall  pass  to  and  vest  in  such  persons  as 
would  be  entitled  by  this  act,  if  the  persons  not  of  the  blood 


TRANSFERS   OF    INTERESTS.  69 

of  such  ancestor  or  other  relation  had  never  existed,  or  were 
dead  at  the  decease  of  the  intestate." 

WHEN  THE  SURVIVING  HUSBAND  OR  WIFE  TAKES  THE 
WHOLE  ESTATE  (Sec.  10). — "In  default  of  known  heirs  or 
kindred  competent  as  aforesaid,  the  real  estate  of  such  in- 
testate shall  be  vested  in  his  widow,  or  if  such  intestate  were 
a  married  woman  in  her  surviving  husband  for  such  estate 
as  the  intestate  had  therein,  and  in  such  case  the  widow  shall 
be  entitled  to  the  whole  of  personal  estate  absolutely." 

OF  ESCHEATS  TO  COMMONWEALTH  (Sec.  12). — "In  default 
of  all  known  heirs,  or  kindred,  widow  or  surviving  husband 
as  aforesaid,  the  real  and  personal  estate  of  such  intestate 
shall  go  to  and  be  vested  in  the  commonwealth  by  escheat/' 

CERTAIN  COLLATERALS  TO  TAKE  BY  REPRESENTATION. — 
By  the  act  of  April  27,  i855,13  "Among  collaterals,  when  by 
existing  laws  entitled  to  inherit,  the  real  and  personal  estate 
shall  descend  and  be  distributed  among  the  grandchildren 
of  brothers  and  sisters,  and  the  children  of  uncles  and  aunts, 
by  representation;  such  descendants  taking  equally  among 
them  such  share  as  their  parent  would  have  taken  if  living." 

DESCENDANTS  OF  GRANDPARENTS  TO  TAKE  BY  REPRESEN- 
TATION AS  NEXT  OF  KIN. — By  the  act  of  May  25,  i88?,14  pro- 
vision is  made  for  the  descent  to  descendants  of  grandparents 
by  representation  when  the  grandparents  would  have  taken 
as  next  of  kin,  but  real  estate  in  such  cases  to  vest  in  persons 
of  the  blood  of  the  ancestor  from  whom  it  was  derived. 

ADOPTING  PARENTS  AND  ADOPTED  CHILD  TO  INHERIT 
FROM  EACH  OTHER. — By  the  act  of  April  13,  iSS/,16  provi- 
sion is  made  for  such  inheritance.  There  is  a  provision  of 
this  law  that  it  shall  only  apply  to  such  property  as  the 
adopted  child  shall  have  inherited  or  derived  from  the 
adopting  parents  or  their  kindred. 

INHERITANCE  IN  CASE  OF  ILLEGITIMATE  CHILDREN. — By 

13  i  P.  &  L.  Dig  2413;  P.  L.  1855,  §  2,  368. 

14  i  P.  &  L.  Dig.  2413;  P.  L.  1887,  261. 

15  i  P.  &  L.  Dig.  2416;  P.  L.  1887,  53. 


70  LANDLORD    AND   TENANT. 

the  act  of  April  27,  1855, lc  illegitimate  children  and  their 
mother  inherit  from  each  other,  and  by  the  act  of  June  5, 
iS83,17  illegitimate  children,  born  of  the  same  mother,  and 
leaving  neither  mother  nor  issue,  are  capable  of  inheriting, 
surviving  inherit  from  each  other. 

HUSBAND'S  RIGHTS  LOST  BY  DESERTION. — By  the  act  of 
May  4,  i855,18  if  a  husband  deserts  his  wife  or  neglects  to 
provide  for  her  for  one  year  previously  to  her  death,  he  will 
lose  his  rights  to  his  wife's  property  under  the  intestate  laws 
and  as  tenant  by  the  curtesy. 

HUSBAND'S  RIGHTS  TO  PERSONAL  PROPERTY,  WIFE  LEAV- 
ING CHILDREN. — "If  a  married  woman  leave  a  child  or  chil- 
dren living,  her  personal  estate  shall  be  divided  amongst  the 
husband  and  such  child  or  children,  share  and  share  alike ;  if 
any  such  child  or  children  being  dead,  shall  have  left  issue, 
such  issue  shall  be  entitled  to  the  share  of  the  parent."  19 

16  i  P  &  L.  Dig.  2420;  P.  L.  1885,  368. 

17  i  P.  &  L.  Dig.  2420;  P.  L.  1883,  88. 

1 8  i  P.  &  L.  Dig.  2902;  P.  L.  1885,  430. 

19  Act  April  n,  1848,  i  P.  &  L.  Dig.  1068;  P.  L.  537. 


CHAPTER  V. 

TRANSFERS    OF    INTERESTS    OF    TENANTS    IN    DEMISED 
PREMISES. 


ASSIGNMENT  OF  LEASE  BY  TEN- 
ANT AND  UNDERLETTING. 

SECTION 

178.  Leases  not  to  be  assigned  ex- 

cept by  writing. 

179.  Difference    between    assign- 

ments and  underletting. 

180.  Position  of  under-tenant. 

181.  Power  of  tenant  to  assign  or 

underlet. 

182.  Tenant    bound    to    pay    rent 

after  he  assigns  his  lease. 

183.  Assignee  liable  as  long  as  he 

holds  title. 

184.  Implied     indemnity     of     as- 

signee. 

185.  Implied  indemnity  of  tenant 

to  under-tenant. 

ASSIGNMENT     OF     LEASE     WHEN 
TENANT  DIES. 

186.  A  lease  a  part  of  decedent's 

assets. 


187.  When      representatives      be- 

come personally  liable. 

LEASE  IN  CASE  OF  AN  ASSIGNMENT 
FOR  THE  BENEFIT  OF 
CREDITORS. 

1 88.  Assignee   for   the   benefit   of 

creditors  has  the  right  to 
accept  lease  or  not. 

189.  Landlord's  preference   under 

the  act  of  1891,  in  case  of  as- 
signments for  the  benefit  of 
creditors. 

100.  Agreement  of  assignee  with 
sheriff  for  sale  of  goods. 

191.  Liability  of  assignee  for  rent. 

SHERIFF'S  LEVY  AND  SALE  OF  A 
LEASE. 

192.  Practice  as  to  levy  and  sale. 


ASSIGNMENT   OF   LEASE    BY   TENANT   AND 
UNDERLETTING. 

Leases  Not  to  be  Assigned  Except  by  Writing. 

178.  Leases  and  term  of  years  are  not  to  be  assigned  by 
landlords  unless  by  writing  or  by  their  agents  unless  they  are 
authorized  by  writing.1 


i  Act  March  21,  1772,  i  P.  &  L.  Dig.  2190;  i  Sm.  L.  389. 


71 


72  LANDLORD    AND    TENANT. 

• 

Difference  between  Assignments  and  Underletting. 

179.  An  assignment  of  lease  is  where  the  whole  term  is 
transferred  by  a  tenant.  An  underletting  is  where  a  tenant 
transfers  less  than  his  whole  term.  The  distinction  between 
an  assignment  and  an  underletting  depends  solely  upon  the 
question  of  interest  which  passes,  and  not  upon  the  extent 
of  the  premises  transferred.  Where,  therefore,  the  lessee  of 
a  house  for  seven  years  demised  part  of  the  house  to  another 
for  the  whole  of  his  term,  this  is  not  an  under-lease  but  an 
assignment  pro  tanto;  and  ,so,  on  the  other  hand,  where  the 
lessee  of  a  house  for  seven  years  demised  the  whole  of  the 
house  for  seven  years,  all  but  one  day,  this  is  an  underlease 
and  not  an  assignment.2 

Position  of  Tinder-Tenant. 

1 80.  Every  under-lessee  becomes  tenant  to  the  lessee  who 
grants  the  under  lease,  and  not  tenant  to  the  original  lessor. 
Between  him  and  the  under-lessee  no  privity  is  said  to  exist. 

Power  of  Tenant  to  Assign  or  Underlet. 

181.  A  tenant  may  either  assign  or  underlet.3     A  cove- 
nant not  to  assign  is  not  broken  by  an  underletting. 

Tenant  Bound  to  Pay  Rent  After  He  Assigns  His  Lease. 

182.  In  case  a  tenant  covenants  to  pay  rent,  his  liability  to 
pay  rent  upon  the  covenant  lasts,  although  he  assigns  his 
lease  and  the  landlord  accepts  rent  from  the  assignee.4 

Assignee  Liable  as  Long  as  He  Holds  Title. 

183.  An  assignee  of  a  lease  is  personally  liable  to  the  head 
landord  for  the  rent  so  long  as  he  holds  the  lease.    By  assign- 
ing the  lease  he  may  get  rid  of  any  liability  for  rent  falling  due 
after  the  assignment.    A  tenant  acquiring  the  leasehold  by  as- 
signment of  the  lease  is  charged  with  notice  of  its  covenants, 

2  Comyn  on  Landlord  and  Tenant,  52. 

3  2  Hilliard  on  Contracts,  63.         4  Frank  v.  Maguire,  42  Pa.  77- 


ASSIGNMENT   OF    LEASE    WHEN    TENANT    DIES.  73 

and  he  takes  the  estate  of  the  assignor  subject  to  them.  But 
his  liability  grows  out  of  privity  of  estate.  It  ceases  when  the 
privity  ceases.  If  he  has  assigned  before  the  time  for  per- 
formance, his  liability  would  have  ceased  with  his  title,  and 
the  liability  would  have  attached  to  his  assignee  by  reason  of 
privity  of  estate.  Each  successive  assignee  would  be  liable 
for  covenants  maturing  while  the  title  was  held  by  him,  be- 
cause of  privity  of  estate ;  but  he  would  not  be  liable  for  those 
previously  broken  or  subsequently  maturing,  because  of  the 
absence  of  any  contract  relations  with  the  lessor.  While  he 
holds  the  estate  and  enjoys  its  benefits  he  bears  its  burdens, 
but  he  lays  down  both  the  estate  and  burdens  by  an  assign- 
ment, even  though,  as  it  is  said  in  some  of  the  cases,  if  the 
assignment  be  to  a  beggar.5 

Implied  Indemnity  of  Assignee. 

184.  A  lessee  who  assigns  is  entitled  to  be  indemnified 
by  his  assignee  against  the  non-payment  of  rent  and  the  non- 
performance  of  the  covenants  in  the  original  lease,  since  his 
liability  continues  although  he  is  not  in  possession. 

Implied  Indemnity  of  Tenant  to  Under-Tenant. 

185.  When  a  tenant  underlets,  the  law  implies  a  duty  on  his 
part  to  indemnify  the  under-tenant  against  all  his  covenants 
with  the  superior  landlord,  and  the  under-tenant  may  have 
an  action  on  the  case  against  him  for  any  injury  he  may  sus- 
tain by  reason  of  any  such  breach  of  contract. 

ASSIGNMENT   OF    LEASE   WHEN   TENANT    DIES. 
A  Lease  a  Part  of  Decedent's  Assets. 

1 86.  When  a  tenant  dies,  a  lease  to  him  will  vest  in  his 
executors  or  administrators  as  personal  property.     A  good- 
will is  the  probability  that  the  old  customers  will  resort  to 
the  old  place,  and  cannot  be  distinguished  or  separated  from 

5  Goss  v.  Brick  Co.,  4  Super.  Ct.  Rep.  167. 


74  LANDLORD    AND   TENANT. 

the  lease  of  the  house.6  Consequently  the  good-will  will  tend 
to  enhance  the  value  of  the  lease.  The  good-will  of  an  inn 
does  not  exist  independently  of  the  house  in  which  it  is  kept.7 
Generally  the  first  duty  of  an  executor  or  administrator  is  to 
sell  the  lease  with  the  good-will,  if  they  are  worth  anything. 
It  was  held  that  it  is  the  duty  of  an  executor  to  sell  and  dis- 
pose of,  for  the  benefit  of  the  creditors  of  the  estate,  a  good- 
will and  unexpired  term  owned  by  the  decedent  in  his  life- 
time.8 

When  Representatives  Become  Personally  Liable. 

187.  If  the  executors  or  administrators  take  possession 
and  use  the  demised  premises  they  will  become  personally 
liable  as  assignees;  but  they  may  get  rid  of  this  liability  at 
any  time  by  an  assignment  of  the  lease.  In  case  a  lease  is 
worthless,  it  may  be  best  to  get  the  landlord  to  accept  a 
surrender  of  the  lease  and  to  release  the  estate. 


LEASE  IN   CASE  OF  AN   ASSIGNMENT   FOR   THE  BENEFIT 
OF  CREDITORS. 

Assignee  for  the  Benefit  of  Creditors  Has  the  Bight  to  Accept  Leaso 
or  Not. 

188.  Trustees  under  an  assignment  for  the  benefit  of  cred- 
itors are  entitled  to  a  reasonable  time  to  ascertain  whether 
or  not  property,  held  under  a  lease  by  the  debtor  can  be 
made  available  for  the  benefit  of  creditors;  they  may,  there: 
fore,  offer  it  for  sale,  and  make  an  experiment  to  see  if  the 
lease  be  beneficial  for  the  estate,  without  incurring  liability. 
If  an  assignee  take  possession,  assume  the  management  of 
the  premises,  or  do  some  other  act  indicating  an  intention 
to  accept  the  assignment  of  the  lease,  he  becomes  liable  upon 
the  lessee's  covenants.  Until  the  assignee  accepts  the  term, 
it  remains  in  the  bankrupt.  If  the  assignee  accept  the  lease, 

6  i  Hoffman's  Chancery,  68. 

7  Elliott's  Ap.,  60  Pa.  161. 

8  Coppel's  Est.,  4  Phila.  378;  Wiley's  Ap.,  8  W.  &  S.  244. 


LEASE    IN    CASE   OF    AN    ASSIGNMENT.  75 

lie  may  rid  himself  of  future  claims  by  assigning  over  as  other 
assignees  may.9  There  was  a  lease  from  year  to  year,  which 
was  not  assignable  without  the  consent  of  the  landlord.  On 
May  27,  1822,  the  tenants  made  an  assignment  for  the  bene- 
fit of  creditors.  The  assignees  took  an  inventory  and  pos- 
session of  the  goods  in  the  store,  took  the  key,  and  made  a 
public  sale  in  the  store.  The  assignors  remained  in  the  dwel- 
ling part  of  the  house  until  June  12,  1822.  On  July  4,  1822, 
the  assignees  tendered  the  key  of  the  demised  premises — 
which  the  landlord  refused  to  accept — and  paid  one  quarter's 
rent,  and  declared  that  they  had  made  no  other  use  of  the 
premises  than  to  make  the  public  sale.  It  was  held  that  the 
assignees  were  not  liable  to  pay  rent  which  became  due  after 
the  date  of  the  assignment.  That  if  the  lease  was  valuable, 
they  were  bound  to  do  the  best  with  it  for  the  estate,  but 
that  assignees  may  elect  or  refuse  to  take  a  lease.10  Where 
the  landlord  seeks  to  enforce  a  claim  based  on  an  alleged 
election  by  the  assignee  to  hold  the  lease  for  the  benefit  and 
st  the  expense  of  the  estate,  it  is  incumbent  on  him  to  prove 
by  clear  and  satisfactory  evidence  an  express  agreement  by 
the  assignee  to  so  hold  it,  or  conduct  on  the  part  of  the  as- 
signee from  which  there  is  a  plain  and  necessary  implication 
that  he  elected  to  do  so.  The  bare  possession  of  the  leased 
premises  for  a  comparatively  brief  time,  for  the  purpose  of 
disposing  of  the  stock  of  merchandise  on  the  premises  at  the 
time  of  the  assignment,  is  insufficient  to  indicate  an  accept- 
ance of  a  lease  by  the  assignee.11 

Landlord's  Preference  under  the  Act  of  1891,  in  Case  of  Assignments 
for  the  Benefit  of  Creditors. 

189.  The  act  of  assembly  of  May  26,  1891,  provides  for 
the  payment  of  rent  in  case  of  assignments  for  the  benefit  of 
creditors.  Where  goods  are  assigned  which  are  liable  for 

9  Taylor's  Landlord  and  Tenant,  §  458. 

10  Pratt  v.  Levan,  I  Miles,  358. 

11  Weinmann's  Est,  164  Pa.  405. 


76  LANDLORD   AND    TENANT. 

distress  for  rent  the  landlord  will  be  first  entitled  to  receive, 
out  of  the  proceeds  of  the  sale  of  such  goods  by  the  assignee, 
his  rent  due  him  at  the  time  of  the  making  of  the  assignment 
not  exceeding  one  year's  rent.  If  the  proceeds  of  the  sale 
shall  not  be  sufficient  to  pay  the  landlord  and  the  costs  of 
the  assignment,  he  will  be  entitled  to  receive  the  proceeds  of 
the  sale  after  deducting  so  much  for  costs  as  he  would  be 
liable  to  pay  in  case  of  a  sale  under  a  distress.11* 

Agreement  of  Assignee  with  Sheriff  for  Sale  of  Goods. 

190.  An  assignee  for  the  benefit  of  creditors,  execution- 
creditors  and  the  sheriff  may  agree  that  the  assignee  shall 
sell.     The  assignee  may  agree  to  protect  the  landlord  to  the 
extent  that  he  could  be  protected  by  a  landlord's  warrant. 
The  landlord  can  give  notice  to  the  assignee  of  his  claim  for 
rent.12 

Liability  of  Assignee  for  Bent. 

191.  An  assigned  estate  was  not  liable  for  rent  of  premise? 
which  had  been  occupied  by  the  assignor,  but  which  the  as- 
signee had  never  taken  possession  of,  and  which  accrued  after 
the  date  of  the  assignment.13 

SHERIFFS   LEVY   AND   SALE   OF   A    LEASE. 
Practice  as  to  Levy  and  Sale. 

192.  A  leasehold,  being  a  chattel  real,  by  reason  of  its 
fixed  and  permanent  character,  can,  under  an  execution,  be 
seized  and  held  only  as  real  estate,  not  as  personal  goods, 
susceptible  of  transportation.     The  levy  of  a  leasehold  can 
be  only  by  description  of  the  realty  out  of  which  it  issues. 
Under  a  fi.  fa.  against  a  lessee,  the  sheriff  went  upon  the 
premises  leased,  examined  them,  etc. ;  afterwards,  out  of  view 
of  them,  he  endorsed  a  description  of  them  on  his  writ,  and 
returned  that  he  had  levied  on  them.     Held,  a  good  levy.14 

ii*  i  P.  &  L.  Dig.  212;  1891,  P.  L.  122. 

12  Leidich's  Est.,  161  Pa.  451. 

13  Assigned  Est.  of  Snyder,  8  Phila.  302. 

14  Iron  Works  Ap.,  77  Pa.  103.  \ 


CHAPTER  VI. 

POWERS    OF    TENANT   AND    LANDLORD    TO    MORTGAGE. 


193.  Powers  under  the  act  of  1855.  198.  Fixtures  and  machinery  can- 

194.  Lease  must  be  recorded.  not    be    removed    without 

195.  Machinery  put  in  after  mo  it-  consent  of  mortgagee. 

gage.  199.  Act  of  1853  as  to  mortgages 

196.  Mortgage  a  breach  of  cove-  of  mines. 

nant  not  to  assign.  200.  Act  of  1891  as  to  mortgages 

197.  The  act  is  not  restricted  to  of  ores,  etc. 

mining  leases.  201.  Mortgages  of  rentals  or  roy- 
alty. 

Powers  under  the  Act  of  1855. 

193.  By  the  act  of  April  27,  1855,  every  lessee  for  a  term 
of  years  of  any  colliery,  mining  land,  manufactory  or  other 
premises  may  mortgage  his  lease  with  all  buildings,  fixtures 
and  machinery  thereon  with  the  same  effect  as  in  case  of  the 
mortgaging  of  a  freehold  interest  and  title  as  to  lien,  notice, 
evidence  and  priority  of  payment,  provided  that  the  mort- 
gage be  acknowledged  and  recorded  together  with  the  lease  ; 
provided  that  such  mortgage  shall  in  no  wise  interfere  with 
the  landlord's  rights,  priority  or  remedy  for  rent.1 

Lease  Must  be  Recorded. 

194.  The  lease  must  be  recorded  with  the  mortgage.1*     A 
copy  of  a  lease  recorded,  referring  to  the  record  of  the  lease, 
will  be  sufficient.2 

1  i  P.  &  L.  Dig.  1607;  1855,  P.  L.  368. 
i*  Sturtevant's  Ap.,  34  Pa.  149. 

2  Ladley  v.  Creighton,  70  Pa.  490. 

»77 


78  LANDLORD    AND    TENANT. 

Machinery  Put  In  After  Mortgage. 

195.  A    mortgage    under    the    act    will    bind    machinery 
brought  into  a  mill  after  the  execution  and  recording  of  the 
mortgage.2* 

Mortgage  a  Breach  of  Covenant  Not  to  Assign. 

196.  A  mortgage  of  a  leasehold  amounts  to  an  assignment 
of  the  term  within  the  meaning  of  a  clause  making  an  as- 
signment a  ground  of  forfeiture.3 

The  Act  is  Not  Restricted  to  Mining  Leases. 

197.  In  view  of  the  remedial  purposes  of  the  statute,  and 
the  general  expression  contained  in  the  subsequent  acts  of 
April  3,  1868,  and  May  13,  1876,  the  words  "or  other  prem- 
ises" are  not  to  be  restricted  to  colliery,  mining  or  manu- 
facturing leaseholds.     A  leasehold  interest  in  a  city  lot  for  a 
term  of  years,  the  lessee  paying  a  yearly  rent  and  taxes,  and 
being  required  to  erect  a  building  thereon,  was  within  the 
operation  of  the  act".     Under  the  act  on  the  failure  of  a  mort- 
gagee of  a  leasehold  either  to  record  the  lease  with  his  mort- 
gage, or  to  cause  full  and  distinct  references  to  be  made  in 
the  mortgage  to  the  book  and  page  where  the  lease  is  there 
recorded,  it  was  held  that  the  mortgage  was  without  lien.4 

Fixtures  and  Machinery   Cannot   be   Removed   Without   Consent   of 
Mortgagee. 

198.  The  act  of  April  27,  1855,  gives  to  a  mortgage  there- 
under the  same  force  and  effect  as  a  mortgage  of  real  estate, 
and  gives  the  mortgagee  like  remedies  for  protection  and 
enforcement  of  his   security.     The  fixtures  and   machinery 
cannot  be  removed  to  the  detriment  of  the  mortgagee  even, 
though  the  mortgage  should  not  be  due.  unless  the  mort- 
gagee has  provided  against  it  by  reserving  to  himself  the  pos- 

2*  Ladley  v.  Creighton,  70  Pa.  490. 

3  Becker  v.  Werner,  98  Pa.  555. 

4  Hilton's  Ap.,  116  Pa.  351. 


POWERS    OF    TENANT    AND    LANDLORD    TO    MORTGAGE.         79 

session  and  control  of  the  mortgaged  property  until  default 
is  made  in  payment  of  the  mortgage  debt.5 

Act  of  1853  as  to  Mortgages  of  Mines. 

199.  The  act  of  April  5,  1853,  authorizes  tenants  of  coal 
mines  in  Schuylkill  county  to  mortgage  their  leases,  fixtures, 
etc.,  as  provided  in  the  law.6 

Act  of  1891  as  to  Mortgages  of  Ores,  etc. 

200.  The  act  of  May  20,  1891,  provides  for  the  mortgaging 
of  iron  ore,  iron,  oil,  gas,  etc.,  to  be  mortgaged  as  therein 
provided.     It  also  provides  for  the  mortgaging  of  coal  leases, 
etc.,  as  therein  prescribed.7 

Mortgages  of  Rentals  or  Royalty. 

201.  By  act  of  May  13,  1889,  rentals  and  royalties  of  mines 
may  be  mortgaged  as  provided.8 

5  Gill  v.  Weston,  no  Pa.  312. 

6  i  P.  &  L.  Dig.  1605;  P.  L.  295. 

7  i  P.  &  L.  Dig.  1608;  P.  L.  102. 

8  I  P.  &  L.  Dig.  1611;  P.  L.  197. 


CHAPTER    VII. 

THE  RECOVERY  OF  POSSESSION  OF  DEMISED   PREMISES  UNDER 

THE  ACT  OF  APRIL   3,    1830,  FOR  THE  NON-PAYMENT 

OF  RENT. 

SECTION  SECTION 

202.  The  act  of  1830.  209.  The  complaint. 

203.  Who  may  have  the  benefit  of  210.  Summons. 

the  act.  211.  The  service  of  the  summons. 

204.  The  rent  due  must  be  certain.  212.  The  hearing. 

205.  The  notice  to  quit.  213.  The  necessary  proof. 

206.  By     whom     notice     can     be  214.  The  judgment. 

given.  215.  Appeal. 

207.  To   whom   notice   should  be  216.  Certiorari. 

given  and  manner  of  serv-  217.  The  execution. 

ice.  218.  Appeal  to  Supreme  Court. 

208.  Payment  of  rent  on  removal. 

The  Act  of  1830. 

202.  "In  case  any  lessee  for  a  term  of  years,  or  at  will,  or 
otherwise,  of  a  messuage,  lands  or  tenements  upon  the  de- 
mise whereof  any  rents  are,  or  shall  be  reserved,  shall 
neglect  or  refuse  to  pay  rent  reserved  as  often  as  the  same  may 
grow  due  according  to  the  terms  of  the  contract,  and  where 
there  are  no  goods  on  the  premises  adequate  to  pay  the  said 
rent  so  in  arrear,  except  such  articles  as  are  exempt  from  levy 
and  sale  by  the  laws  of  this  commonwealth,  it  shall  and  may 
be  lawful  for  the  lessor  to  give  the  lessee  notice  to  quit  the 
premises  within  fifteen  days  from  the  date  of  the  notice,  if 
such  notice  is  given  on  or  after  the  ist  of  April  and  before  the 
ist  of  September,  and  within  thirty  days  from  the  date  thereof 
if  given  on  or  after  the  ist  of  September  and  before  the  ist 
day  of  April;  and  if  the  lessee  shall  not  within  the  period 
aforesaid,  remove  from  and  deliver  up  the  said  premises  to  the 
80 


RECOVERY    OF    POSSESSION    OF    DEMISED    PREMISES.  81 

said  lessor  or  pay  and  satisfy  the  rent  so  due  and  in  arrear, 
it  shall  be  lawful  for  the  lessor  to  make  complaint  on  oath  or 
affirmation  to  any  two  aldermen  or  justices  of  the  peace,  as 
the  case  may  require,  who,  on  its  appearing  to  them  that  the 
lessor  has  demised  the  premises  for  a  term  of  years  or  other- 
wise, whereof  any  rent  or  rents  have  been  reserved,  that  the 
said  rent  is  in  arrear  and  unpaid,  that  there  is  not  sufficient 
goods  and  chattels  on  the  premises  to  pay  and  satisfy  the  said 
rent,  except  such  as  are  by  law  exempt  from  levy  and  sale,  and 
that  the  lessee  has,  after  being  notified  in  manner  aforesaid, 
refused  to  remove  and  re-deliver  up  possession  of  the  prem- 
ises, shall  then  and  in  that  case  insure  their  precept,  reciting 
substantially  the  complaint  and  allegation  of  the  lessor,  di- 
rected to  any  constable  of  the  proper  city  or  county,  com- 
manding him  to  summon  the  said  lessee  to  appear  before  the 
said  alderman  or  justices  at  a  day  and  time  to  be  therein  fixed, 
not  less  than  three  nor  more  than  eight  days  thereafter,  to 
answer  the  said  complaint,  and  the  said  alderman  or  justices 
shall,  on  the  day  appointed,  or  on  some  other  day  then  to  be 
appointed  by  said  justices  or  aldermen,  proceed  to  hear  the 
case,  and  if  it  shall  appear  that  the  said  complaint,  so  made 
as  aforesaid  by  the  lessor,  is  in  all  particulars  just  and  true, 
then  the  said  aldermen  or  justices  shall  enter  judgment 
against  such  lessee  that  the  premises  shall  be  delivered  up  to 
the  lessor,  and  at  the  request  of  the  lessor  issue  a  writ  of 
possession  directed  to  the  said  constable,  commanding  him 
forthwith  to  deliver  actual  possession  of  the  premises  to  the 
lessor  and  also  to  levy  costs  on  the  defendant  in  the  same 
manner  that  costs  are  now  by  law  levied  and  collected  on 
other  writs  of  execution;  but  if  on  the  hearing  aforesaid  it 
shall  appear  that  the  said  complaint  is  vexatious  and  un- 
founded, the  said  alderman  or  justices  shall  dismiss  the  same, 
with  costs  to  be  paid  by  the  lessor.  Provided  always,  that  at 
any  time  before  the  said  writ  of  possession  is  actually  ex- 
ecuted, the  lessee  may  supersede  and  render  the  said  writ  of 
none  effect,  by  paying  to  the  said  constable  for  the  use  of  the 
6 


82  LANDLORD    AND    TENANT. 

lessor  the  rent  actually  due  and  in  arrear  and  the  costs ;  which 
rent  so  in  arrear  shall  be  ascertained  and  determined  by  the 
said  aldermen  or  justices  on  due  and  legal  proof  and  endorsed 
by  them  on  the  said  writ  of  possession,  together  with  the 
costs  of  the  proceedings,  of  all  which  doings  the  said  constable 
shall  make  return  to  the  said  aldermen  or  justices  within  ten 
days  after  receiving  of  the  said  writ,  and  the  said  constable 
shall  be  answerable  in  default  of  executing  the  said  writ  ac- 
cording to  its  lawful  requisitions  or  in  returning  the  same 
in  the  same  manner  as  to  the  amount  of  rent,  ascertained 
and  determined  and  costs  as  constables  are  now  by  law  an- 
swerable on  other  writs  of  execution.  And  provided  further, 
that  no  writ  of  possession  shall  be  issued  by  the  said  alder- 
men or  justices  for  five  days  after  the  rendition  of  judgment, 
and  if  within  the  said  five  days,  the  tenant  shall  give  good, 
sufficient  and  absolute  security  by  recognizance  for  all  costs 
that  may  have  and  may  accrue,  in  case  the  judgment  shall 
be  affirmed,  and  also  for  all  rent  that  has  accrued,  or  may  ac- 
crue up  to  the  time  of  final  judgment,  then  the  tenant  shall 
be  entitled  to  an  appeal  to  the  next  court  of  common  pleas, 
which  appeal  shall  be  then  tried  in  the  same  manner  that 
other  suits  are  tried.  And  provided  further,  that  nothing 
herein  contained  shall  prevent  the  issuing  a  certiorari  with  the 
usual  form  and  effect."  V 

Who  May  Have  the  Benefit  of  the  Act. 

203.  Lessors  are  expressly  given  the  benefit  of  the  law. 
The  word  lessor  seems  to  mean  the  same  as  landlord,  and  con- 
sequently heirs,  grantees  and  devisees  of  the  original  lessor 
would  have  the  benefit. 

The  Bent  Due  Must  be  Certain. 

204.  The  tenant  has  the  privilege  to  stop  the  proceedings 
by  the  payment  of  his  rent,  and  as  the  amount  of  rent  due 

i  P.  &  L.  Dig.  2655,  2657;  1830,  P.  L.  187. 


RECOVERY   OF   POSSESSION   OF   DEMISED   PREMISES.  83 

must  be  found  in  the  proceedings,  there  is  an  indication  that 
the  rent  must  be  certain  as  under  the  acts  of  1772  and  1863, 
and  in  proceedings  for  distraint  for  rent. 

The  Notice  to  Quit. 

205.  By  the  notice  there  must  be  a  demand  for  the  rent 
claimed.     The  rent  must  not  be  calculated  to  a  date  subse- 
quent to  that  of  the  notice.1* 

By  Whom  Notice  Can  be  Given. 

206.  The  act  of  1830  provides  that  the  lessor  shall  give  the 
notice,  but  an  heir  can  do  so  and  avail  himself  of  the  remedy." 
and  also  a  sheriff's  vendee  and  an  assignee.3 

To  Whom  the  Notice  Should  be  Given  and  Manner  of  Service. 

207.  In  case  the  tenant  has  not  assigned  his  lease  or  under- 
let the  demised  premises  the  notice  may  be  served  on  the 
defendant  on  the  premises  or  elsewhere.3  *   In  case  the  tenant 
has  assigned  or  underlet,  the  notice  must  be  served  upon  the 
individual  residing  on  the  premises,  viz.,  the  assignee  or 
under-tenant.     A  sub-tenant  cannot  be  turned  out  of  posses- 
sion without  notice,  for  he  may  be  willing  to  pay  the  rent. 
It  seems  that  it  will  be  best  to  give  notice  to  the  lessor  as 
well  as  the  assignee  and  under-tenants,  and  that  if  any  person 
is  entitled  to  notice  he  can  be  served  on  or  away  from  the 
premises.4     In  case  a  person  entitled  to  notice  cannot  be 
found  it  may  possibly  be  sufficient  to  leave  the  notice  at  his 
residence  or  on  the  premises,  but  a  personal  service  should 
be  made  if  possible.     For  further  remarks  as  to  service,  see 
as  to  notice  under  act  of  1863. 

i*  Stoever  v.  Miller,  4  Phila.  149. 

2  Clark  v.  Everly,  8  W.  &  S.  226. 

3  McKeon  v.  King,  9  Barr.  213;  Glenn  v.  Thompson,  75  Pa.  389. 
3*  Reid  v.  Christy,  2  Phila.  Rep.  144. 

4  Clark  v.  Everly,  8  W.  &  S.  226. 


84  LANDLORD    AND    TENANT. 

Payment  of  Bent  on  Removal. 

208.  The  tenant  can  pay  the  rent  and  thereupon  the  pro- 
ceeding will  be  stayed,  or  he  may  remove,  but,  in  case  of  a  re- 
moval, the  tenant  should  notify  the  landlord. 

The  Complaint. 

209.  If  the  lessee  shall  not  remove  from  and  deliver  up  the 
premises  to  the  lessor,  or  pay  and  satisfy  the  rent  due  and  in 
arrear,  the  lessor  can  make  complaint  on  oath  or  affirmation 
to  an  alderman,  a  justice  of  the  peace  or  magistrate.     The 
complaint  must  show  that  the  lessor  has  demised  the  prem- 
ises for  a  term  of  years  or  otherwise,  and  that  certain  rent  has 
been  reserved;  that  the  rent  is  in  arrear  and  unpaid;  that 
there  are  not  sufficient  goods  and  chattels  on  the  premises 
to  pay  and  satisfy  the  rent  in  arrear,  except  such  as  are  by 
law  exempted  from  levy  and  sale,  and  that  the  lessee  has, 
after  being  notified  as  aforesaid,  refused  to  remove  and  de- 
liver up  possession  of  the  premises.     If  the  lessor  has  con- 
veyed or  has  died  intestate  or  has  devised  the  demised  prem- 
ises, there  should  be  averments  accordingly. 

Summons. 

210.  The  precept  recites  substantially  the  complaint  and 
allegation  of  the  lessor.     It  is  directed  to  any  constable  of 
the  proper  city  or  county,  commanding  him  to  summon  the 
lessee  to  appear  before  the  alderman,  justice  or  magistrate,  at 
a  day  and  time  to  be  therein  fixed,  not  less  than  three  nor 
more  than  eight  days  thereafter,  to  answer  the  said  complaint. 

The  Service  of  the  Summons. 

211.  The  law  does  not  state  the  manner  of  service.     It 
probably  can  be  served  the  same  as  a  summons  in  an  ordinary 
suit.     The  act  of  1830,  like  the  act  of  1772,  does  not  pre- 
scribe the  manner  of  service.     It  was  remarked  that  under 
the  act  of  1772  for  possession,  the  summons  could  be  served 
on  an  agent  at  a  theatre  because  at  the  time  of  the  passage 
of  the  act  personal  service  of  the  ordinary  summons  was  not 


RECOVERY    OP    POSSESSION    OF    DEMISED    PREMISES.  85 

necessary,5  but  it  was  said  from  the  language  of  the  act,  serv- 
ice on  the  demised  premises  upon  the  person  in  possession 
seems  to  be  contemplated.  In  Snyder  v.  Carfrey,  54  Pa.  94, 
it  was  held  that  a  return  as  served  "personally  on  the  defend- 
ant at  his  dwelling-house  by  leaving  a  copy  of  the  original 
summons  and  making  known  the  contents  thereof,"  was  good 
under  the  act  of  1863,  and  of  any  summons.6 

The  Hearing. 

212.  The  aldermen  or  justices  on  the  day  appointed,  or  on 
some  other  day  then  to  be  appointed,  proceed  to  hear  the 
case,  and  if  it  shall  appear  that  the  complaint  is  in  all  par- 
ticulars just  and  true,  then  the  said  aldermen  or  justices  enter 
judgment  against  the  lessee  that  the  demised  premises  shall 
be  delivered  up  to  the  lessor.  At  the  hearing  the  lessor  must 
prove  the  allegations  in  his  complaint.  If  the  lease  is  in  writ- 
ing, it  should  be  produced  and  proved  in  the  legal  way. 
Under  our  present  law,  the  lessor,  if  his  tenant  be  living,  can 
be  a  witness.  The  notice  to  quit  should  be  proved  by  the 
person  who  served  the  notice.  The  jurisdiction  of  the  jus- 
tice or  alderman  and  of  the  court  of  common  pleas  on  appeal, 
will  be  ousted  where  it  shall  appear  by  the  evidence  that  a 
question  of  title  arises  between  the  party  charged  as  tenant 
and  the  party  claiming  as  landlord;  for  instance,  where  the 
lessee  should  claim  to  have  the  lessor's  title  by  parol  purchase 
from  him,  the  lessee  is  entitled  to  have  his  rights  determined 
in  an  action  of  ejectment.  The  tenant  has  no  right  to  at- 
torn to  the  holder  of  an  adverse  title.  The  title  of  a  stranger, 
not  claiming  by  or  under  the  lessor,  cannot  come  in  question 
unless  the  title  of  the  lessor  has  actually  come  to  an  end  by 
his  own  act,  or  been  divested  by  act  of  the  law.  The  lessee 
can  prove  that  the  lessor's  title,  having  expired,  has  become 
vested  in  another.  It  is  not  necessary  that  the  evidence  must 
fully  establish  the  invalidity.  A  lessor  entered  into  a  parol 

5  Watts  v.  Fox,  64  Pa.  336.        6  Snyder  v.  Carfrey,  54  Pa.  94. 


86  LANDLORD    AND    TBNANT. 

agreement  for  the  sale  of  premises;  the  lessee,  from  the 
date  of  the  agreement,  for  several  years  had  exclusive  pos- 
session of  the  premises  under  it;  the  parties  had,  during  all 
that  time,  treated  the  lease  as  at  an  end,  and  a  large  number 
of  payments  had  been  applied  on  account  of  the  purchase- 
money.  It  was  held  that  the  lessee  was  entitled  to  have  his 
rights  determined  by  an  action  of  ejectment.7 

The  Necessary  Proof. 

213.  Under  the  act  of  1830,  the  landlord  must  prove  the 
demise;  the  reservation  of  rent;  the  tenant's  failure  to  pay 
the  same ;  the  insufficiency  of  the  goods  on  the  premises,  not 
exempt  from  levy  and  sale,  to  answer  a  distress;  the  service 
of  proper  notice  to  quit,  and  the  tenant's  failure  to  pay  the 
rent  in  arrears,  or  to  remove  from  the  premises  before  the 
inception  of  the  proceedings.8 

The  Judgment. 

214.  The  judgment  must  be  against  the  lessee;  that  the 
premises  shall  be  delivered  up  to  the  lessor,  it  cannot  be  for  the 
rent  in  arrear;  it  should  not  be  in  the  alternative  for  the  rent 
or  possession.     An  execution  cannot  be  issued  for  the  rent 
under  the  judgment.     However,  the  rent  in  arrear  must  be 
ascertained  and  determined  by  the  justice  or  alderman,  on 
due  and  legal  proof,  so  that  the  same  can  be  endorsed  by  him 
on  a  writ  of  possession.     If,  on  the  hearing,  the  complaint 
shall  be  found  to  be  vexatious  and  unfounded,  it  will  be  dis- 
missed and  the  costs  will  be  ordered  to  be  paid  by  the  lessor. 

Appeal. 

215.  No  writ  of  possession  shall  be  issued  for  five  days 
after  the  rendition  of  the  judgment ;  and  if  within  the  five  days 
the  tenant  shall  give  good,  sufficient  and  absolute  security, 
by  recognizance,  for  all  costs  that  may  have,  and  may  ac- 

-  Mohan  v.  Butler,  112  Pa.  590. 

8  Palethorp  v.  Schmidt,  12  Super.  Ct.  R.  214. 


RECOVERY    OF    POSSESSION    OF    DEMISED    PREMISES.  87 

crue,  in  case  the  judgment  shall  be  affirmed,  and  also  for  all 
rent  that  has  accrued  or  may  accrue  up  to  the  time  of  final 
judgment,  then  the  tenant  shall  be  entitled  to  an  appeal  to 
the  next  court  of  common  pleas,  which  appeal  shall  be  then 
tried  in  the  same  manner  in  which  other  suits  are  tried.  The 
act  does  not  expressly  say  that  the  appeal  will  be  a  super- 
sedeas of  execution,  but  it  seems  to  be  the  intention  that  it 
shall  be.  Upon  an  appeal  the  case  is  tried  upon  the  merits, 
as  if  no  decision  had  been  made  before.  If  the  proceedings 
are  affirmed  by  the  court  of  common  pleas,  a  writ  of  posses- 
sion can  be  issued. 

Certiorari. 

2 1 6.  The  act  provides  that  a  certiorari  can  be  issued  with 
the  usual  form  and  effect.  In  the  state,  except  in  the  city  of 
Philadelphia,  the  certiorari  can  be  issued  within  twenty  days 
after  the  date  of  the  judgment  or  the  tenant's  knowledge  of 
the  judgment.  The  certiorari,  however,  in  the  state,  outside 
Philadelphia,  will  not  be  a  supersedeas  of  execution.  Upon 
proceedings  upon  certiorari  the  court  will  not  consider  the  tes- 
timony or  evidence;  the  only  questions  involved  will  be  those 
concerning  the  regularity  of  the  proceedings.  In  case  of  a 
charge  of  fraud,  or  where  there  is  a  question  of  jurisdiction, 
depositions  may  be  taken  for  the  hearing  on  the  certiorari. 
In  a  certiorari  to  the  judgment  of  a  magistrate  in  a  proceed- 
ing by  a  landlord  under  the  act  of  1830  to  recover  possession 
of  premises  for  non-payment  of  rent  it  is  sufficient  if  the  tran- 
script of  the  record  of  the  magistrate  discloses  the  facts  nec- 
essary to  give  jurisdiction.  It  is  not  necessary  that  all  of  the 
facts  should  be  set  forth  in  detail ;  the  general  finding  was  in 
the  very  words  of  the  statute,  and  was  sufficient.9  In  the 
city  of  Philadelphia  the  certiorari  will  be  a  supersedeas  of  exe- 
cution until  the  final  determination  by  the  court,  provided  it 
shall  be  issued  within  ten  days  from  the  date  of  the  judgment, 

g  Maxwell  v.  Perkins,  93  Pa.  255. 


88  LANDLORD    AND    TENANT. 

and  upon  oath  of  the  party  applying  for  the  same  (to  be  ad- 
ministered by  the  prothonotary  of  the  court  of  common 
pleas),  that  the  certiorari  is  not  for  the  purpose  of  delay,  but 
that  the  proceedings  proposed  to  be  removed  are,  to  the  best 
of  his  knowledge  and  belief  unjust  and  illegal,  and  will 
oblige  him  to  pay  more  money  than  is  justly  due,  a  copy  of 
which  affidavit  shall  be  filed  in  the  prothonotary's  office,  and 
the  party  applying  for  the  certiorari  shall  give  security  for  the 
payment  of  all  costs  that  have  accrued  or  may  accrue,  and  of 
the  rent  which  has  already  or  may  become  due  up  to  the  time 
of  the  final  determination  of  the  certiorari,  in  the  event  of 
the  same  being  determined  against  him.10 

Tne  Execution. 

217.  If  no  appeal  shall  be  taken  or  no  certiorari  issued,  in 
the  city  of  Philadelphia,  a  writ  of  possession  will  be  issued, 
directed  to  a  constable,  commanding  him  forthwith  to  de- 
liver actual  posession  of  the  premises  to  the  lessor,  and  also 
to  levy  the  costs  on  the  defendant  in  the  same  manner  in 
which  costs  are  levied  and  collected  on  other  writs  of  execu- 
tion, provided  that  at  any  time  before  the  writ  of  possession  is 
actually  executed,  the  lessee  may  supersede  and  render  the 
writ  of  none  effect  by  paying  to  the  constable,  for  the  use  of 
the  lessor,  the  rent  actually  due  and  in  arrear,  and  the  costs ; 
which  rent  in  arrear  is  to  be  found  and  endorsed  on  the  writ 
of  possession  with  the  costs  as  aforesaid.     The  constable  must 
make  return  of  the  writ  of  possession  within  ten  days  after  re- 
ceiving the  writ. 

Appeal  to  Supreme  Court. 

2 1 8.  If,  upon  appeal  to  the  court  of  common  pleas  by  a  ten- 
ant, the  judgment  is  affirmed  against  him,  he  may  appeal  to 
the  Superior  Court  or  Supreme  Court,  as  the  case  may  be, 
in  which  case  the  testimony  taken  in  the  court  of  common 
pleas  will  be  considered. 

10  Act  March  24,  1865,  i  P.  &  L.  Dig.  2559;  P.  L.  75<>. 


CHAPTER  VIII. . 

PROCEEDINGS  TO  OBTAIN  SECURITY  EOR  RENT  OR  POSSESSION 

WHEN   TENANT   REMOVES    FROM    THE    DEMISED 

PREMISES,   IN   PHILADELPHIA. 

SECTION  SECTION 

219.  Act  of  March  25,  1825.  222.  Complaint  must  show  a  lease 

220.  Tenant  must  remove.  for  years. 

221.  Notice    must    be    signed    by  223.  Tender  of  rent. 

landlord  or  his  agent. 

Act  of  March  25,  1825. 

219.  "If  any  lessee  for  a  term  of  years  in  the  city  and 
county  aforesaid,  shall  remove  from  such  demised  premises, 
without  leaving  sufficient  property  thereon  to  secure  the  pay- 
ment of  at  least  three  months'  rent,  or  shall  refuse  to  give 
security  for  the  payment  thereof,  in  five  days  after  demand  of 
tlie  same,  and  shall  refuse  to  deliver  up  possession  of  such 
premises,  it  shall  and  may  be  lawful  for  the  landlord  or  lessor 
to  apply  to  any  two  aldermen  or  justices  of  the  peace  within 
the  city  and  county  of  Philadelphia,  and  make  an  affidavit 
or  affirmation  of  the  fact,  and  thereupon  the  said  aldermen 
or  justices  of  the  peace  shall  forthwith  issue  their  precepts, 
to  any  constable  of  the  proper  city  or  county,  commanding 
him  to  summon  such  lessee,  before  such  aldermen  or  justices, 
on  a  day  certain,  not  exceeding  eight  nor  less  than  five  days, 
to  answer  such  complaint.  And  the  said  aldermen  or  justices 
shall,  on  the  day  appointed,  proceed  to  hear  the  case,  and, 
if  it  shall  appear  that  the  lessee  has  removed  from  the  prem- 
ises, without  leaving  sufficient  goods  and  chattels,  or  giving 
security  for  the  payment  of  the  rent  as  aforesaid,  and  has  re- 
fused to  deliver  up  possession  of  the  demised  premises,  they 

89 


90  LANDLORD    AND    TENANT. 

shall  enter  judgment  against  such  lessee,  that  said  premises 
shall  be  delivered  up  to  the  lessor  or  landlord  forthwith,  and 
shall,  at  the  request  of  the  said  lessor  or  landlord,  issue  a 
writ  of  possession,  directed  to  said  constable,  commanding  him 
forthwith  to  deliver  possession  of  the  premises  to  the  landlord 
or  lessor  and  also  to  levy  the  costs  on  the  defendant,  in  the 
same  manner  that  executions  issued  by  justices  of  the  peace 
are  directed  by  law."  J 

Tenant  Must  Remove. 

220.  On  May  20,  1826,  a  landlord  notified  a  tenant  to  give 
security  for  three  months'  rent  in  five  days  or  to  give  peace- 
able possession  on  or  before  May  26.     The  tenant  did  not 
comply.     On  May  27,  the  landlord  made  an  affidavit  before 
two  justices  of  the  peace  that  the  tenant  then  had  possession 
as  tenant  from  year  to  year  of  a  certain  house,  that  he  had 
no  goods  or  personal  property  on  the  premises,  sufficient  to 
satisfy  a  quarter's  rent ;  but  that  nearly  all  had  been  removed ; 
that  he  had  demanded  the  security  or  possession.     On  the 
same  day  the  summons  was  issued  judgment  was  rendered 
against  the  tenant,  a  writ  of  possession  was  issued.     A  writ  of 
certiorari  was  afterwards  issued  by  the  court  of  common  pleas 
and  on  a  hearing  the  judgment  was  reversed.     On  a  writ  of 
error  to  the  court  of  common  pleas  the  Supreme  Court  held 
that  it  is  not  sufficient  that  the  tenant  has  removed  part  of 
his  goods  without  leaving  sufficient  to  secure  the  payment  of 
three  months'  rent  while  he  himself  remains  in  possession 
of  the  premises.2 

Notice  Must  be  Signed  by  Landlord  or  His  Agent. 

221.  A  notice  under  the  act  was  signed  by  George  W. 
Powell,  not  as  agent  or  attorney  of  the  landlord  nor  in  his  own 
right  as  assignee  or  purchaser,  although  he  subsequently 
claimed  to  act  as  the  agent  of  the  landlord.     The  tenant  was 

1  Act  March  25,  1825,  P.  &  L.  Dig.  2659. 

2  Fretag  v.  Anderson,  i  Rawle,  72. 


PROCEEDINGS  TO  OBTAIN  SURETY  FOR  RENT.       91 

not  served  personally  with  the  notice  or  summons  and  he  did 
not  waive  or  cure  the  defect  by  an  appearance.  The  judg- 
ment of  the  justices  was  reversed  and  the  proceedings  were 
quashed.8 

Complaint  Must  Show  a  Lease  for  Years. 

222.  The  complaint  must  allege  that  the  premises  were  let 
by  plaintiff  to  defendant  for  a  term  of  years.4 

Tender  of  Bent. 

223.  A  sub-tenant  is  entitled  to  the  right  of  tendering  se- 
curity for  rent  under  the  act.5     A  tender  after  the  five  days 
is  too  late.6 

3  Powell  v.  Campbell,  2  Phila.  42. 

4  Geisenberger  v.  Cerf,  I  Phila.  17;  Mund  v.  Vanfleet,  2  Phila. -41. 

5  Grider  v.  Mclntyre,  6  Phila.  112. 

6  Ward  v.  Wandell,  10  Pa.  98.  J 


CHAPTER  IX. 

COLLECTING  .RENTS. 


SECTION 

224.  Jurisdiction  of  justices  of  the 

peace,  etc. 

225.  The  hearing. 

226.  Suits  in  court. 

227.  Practice  in  equity  as  to  re- 

ceivers collecting  rents. 

228.  Collection  of  rent  due  during 

administration  of  receivers. 

229.  Loss  of  rents  collected  by  re- 

ceiver from  sub-tenants. 

230.  Recovery  of  rent  in  case  of 

death  of  tenant. 

231.  Landlord  to  present  claim  to 

the  orphans'  court. 

232.  Collection  of  rent  in  case  of 

bankruptcy. 

233.  Rent  under  the  bankrupt  act 

of  1898  not  apportioned. 

RIGHTS  TO  RENT  FROM  SHERIFF'S 
SALES  OF  PERSONAL  PROP- 
ERTY. 

234.  Act  of  1836. 

235.  Rent  apportioned. 

236.  Landlord  should  notify  sher- 

iff of  his  claim. 


SECTION 

237.  Note    taken    no    waiver    of 

claim. 

238.  The  goods  must  have  beer- 

liable  to  distraint. 

EQUITABLE  RELIEF  TO  A  TENANT 
IN  CASE  RENT  is  .CLAIMED 
BY  Two  ADVERSE  PARTIES. 

239.  The  nature  of  the  proceeding, 

PREFERENCE  OF  WAGES  OVER 
RENT. 

240.  Act  of  April  9,  1872. 

241.  The  claim  for  wages  may  be 

sold  and  assigned. 

COLLECTION  OF  RENT  BY  AT- 
TACHMENT. 

242.  Liability   of  rent  due  to  be 

attached  by  an  attachment- 
execution. 

243.  Liability  of  tenant  in  case  of 

foreign   attachment   against 
the  landlord. 


Jurisdiction  of  Justices  of  the  Peace,  etc. 

224.  Justices  of  the  peace  and  magistrates  have  original 
jurisdiction  of  all  cases  of  rent  not  exceeding  $100  to  be  re- 
covered as  debts  of  similar  amounts  are  recoverable.1  The 


i  Act  March  22,  1814,  i  P.  &  L.  Dig.  2550,  §  43;  6  Sm.  L.  182. 
92 


COLLECTING   RENTS.  93 

jurisdiction  of  justices  of  the  peace  in  cases  of  contract,  etc.,  is 
given  where  the  sum  demanded  does  not  exceed  $300,  but 
this  extension  does  not  apply  to  magistrates  in  cities  of  the 
first  class.2 

The  Hearing. 

225.  At  the  hearing  the  landlord  proves  the  renting  and 
the  rent  in  arrear.     If  there  is  a  lease  it  should  be  produced 
and  proved  if  not  admitted.     The  parties  can  appeal  from 
the  judgment  of  the  justice  as  in  other  cases  and  there  can  be 
a  certiorari  and  the  proceedings  are  as  in  other  cases. 

Suits  in  Court. 

226.  If  the  amount  of  the  claim  is  sufficient  the  tenant  can 
be  summoned  to  appear  in  court  and  the  case  proceeds  as  in 
other  cases.    In  case  of  a  judgment  and  execution  the  con- 
stable or  sheriff,  as  the  case  may  be,  should  be  notified  if  the 
tenant  has  waived  the  exemption  law. 

Practice  in  Equity  as  to  Receivers  Collecting  Rents. 

227.  "When  a  receiver  is  appointed  to  take  charge  of  real 
estate,  tenants  are  ordered  to  attorn  to  him  and  to  pay  him 
the  rents.  .  .  .  Tenants  can  be  requested  to  attorn  and  be 
served  with  a  copy  of  the  order.     If  they  refuse,  a  petition 
can  be  presented  setting  forth  the  facts  and  notifying  the  ten- 
ants that  application  will  be  made  to  the  court  at  the  time 
named.     The  court  then  makes  the  order  to  attorn  and  it  is 
enforced  by  attachment.  .  .  .  The  rights  of  a  landlord  are 
not  affected  by  the  appointment  of  a  receiver,  but  the  land- 
lord cannot  exercise  his  rights  without  leave  of  the  court. 
When  the  receiver  sold  the  goods  of  a  tenant  without  dis- 
training, the  English  courts  gave  no  priority  to  the  land- 
lord." 8 

2  Act  July  7,  1879;  i  P.  &  L.  Dig.  2553,  §  51;  P.  L.  194,  §  I. 

3  Brewster's  Practice  (Equity),  §  6136. 


94  LANDLORD    AND    TENANT. 

Collection,  of  Bent  Due  During  Administration  of  Beceivers. 

228.  A  landlord  has  a  lien  on  the  fund  raised  by  sale  by  a 
receiver  which  had  accrued  under  the  receivership  and  the 
fund  should  not  be  reduced  by  commissions  or  counsel  fees, 
but  the  landlord  may  be  charged  with  part  of  the  costs  of  an 
audit,  if  necessary  to  adjudicate  conflicting  claims.4 

Loss  of  Bents  Collected  by  Beceiver  from  Sub-Tenants. 

229.  If  receiver  collects  rents  from  sub-tenants,  the  land- 
lord   should    receive    the    entire    amount    collected    unless 
mingled  in  a  general  fund  in  conducting  business  and  the 
landlord  takes  no  steps  to  have  the  court  direct  such  rental 
set  apart.     If  the  landlord  fails  to  do  this  he  will  lose  his 
priority  for  such  rents.5 

Recovery  of  Bent  in  Case  of  Death  of  Tenant. 

230.  By  the  act  of  Feb.  24,  1834,  the  debts  of  a  decedent 
are  to  be  paid  as  follows : 

I.  Funeral  expenses,  medicine  furnished  and  medical  at- 
tendance given  during  the  last  illness  of  the  decedent,  and 
servants'  wages  not  exceeding  one  year. 

II.  Rents  not  exceeding  one  year. 

III.  All  of  the  debts,  without  regard  to  the  quality  of  the 
same,  except  debts  due  to  the  commonwealth,  which  shall 
be  last  paid. 

While  the  first  class  ought,  where  the  estate  is  certainly 
solvent,  to  be  paid  immediately,  the  claim  for  rent  is  not  re- 
quired to  be  paid  until  the  expiration  of  a  year  after  letters 
granted.6  The  landlord  of  the  deceased  insolvent  tenant  is 
not  entitled  to  the  preference  to  a  year's  rent  which  did  not 
accrue  until  the  death  of  the  tenant.7 

4  Lane  v.  Hotel  Co.,  190  Pa.  230. 

5  Lane  v.  Hotel  Co.,  190  Pa.  230. 

6  Hood  on  Executors,  176. 

7  McKim's  Est,  2  Clarke,  224. 


COLLECTING    RENTS.  95 

Landlord  to  Present  Claim  to  the  Orphans'  Court. 

231.  After  the  death  of  a  tenant  it  would  seem  that  resort 
must  be  made  to  the  remedy  provided  by  the  said  act  of  as- 
sembly, and  that  the  right  to  distrain  for  the  rent  is  gone.8 

Collection  of  Bent  in  Case  of  Bankruptcy. 

232.  On  Nov.  25,  1898,  a  petition  in  bankruptcy  was  filed. 
On  Nov.  28,  1898,  a  distress  was  made  for  rent  due  Nov.  i. 
On  Dec.  2,  1898,  a  distress  was  made  for  another  month's 
rent.     On  Dec.  12,  1898,  the  bankrupt  court  made  an  order 
that  the  landlords  should  proceed  no  further  with  the  dis- 
tress, but  should  deliver  to  the  receiver  the  property  dis- 
trained upon,  subject  to  whatever  lien,  if  any,  there  might  be 
for  said  rent  and  costs  which  should  be  paid  as  a  preferred 
claim  out  of  the  first  moneys  in  the  hands  of  the  receiver. 
The  trustee  was  ordered  to  pay  the  rent  and  for  use  and  oc- 
cupation.    The  referee  said  that  "Where  the  landlord  makes 
a  demand  upon  the  assignee  before  the  removal  of  the  goods 
for  an  amount  not  exceeding  a  year's  rent,  it  should,  I  think, 
if  unpaid,  be  admitted  as  entitled  to  priority  of  payment, 
whether  the  right  of  distraint  exists  or  not.     Where  more 
than  a  year's  rent  is  demanded,  the  question  of  the  right  of 
distraining  will  arise."     The  court  (McPherson,  J.)  overruled 
exceptions  to  the  allowances.9 

Bent  under  the  Bankrupt  Act  of  1898  Not  Apportioned. 

233.  The  former  bankrupt  law  provided  for  an  apportion- 
ment and  payment  of  rent  up  to  the  time  of  the  bankruptcy. 
The  present  law  has  no  such  provision.     It  has  been  held  that 
rent  to  accrue  in  the  future  cannot  be  called  a  debt  owing. 
Only  those  instalments  of  rent  which  have  become  due  and 
payable  before  the  filing  of  the  petition  are  provable.     "No 
matter  how  large  a  portion  of  the  instalment  period  has  tran- 
spired, unless  it  has  been  fully  completed,  and  the  instalment 

8  Hoskins  v.   Housten,  2  Clarke,  489. 

9  In  re  Gerson,  8  Pa.  Dis.  R.  277. 


96  LANDLORD   AND   TENANT. 

of  rent  has  become  due,  there  is  no  provable  claim.  The  les- 
sor's rights  against  the  bankrupt  are  unaffected,  but  he  can 
collect  payment  from  after-acquired  property  only.  He  can- 
not share  in  the  assets  administered  in  bankruptcy."  10  It 
is  suggested  that  there  can  be  a  clause  in  a  lease  providing 
that  in  case  any  petition  shall  be  signed  or  presented,  to 
have  the  lessee  or  his  assignee  of  the  lease  adjudged  a  volun- 
tary or  an  involuntary  bankrupt  under  the  bankrupt  law  of 
the  United  States,  that  then  the  rent  of  the  current  period 
shall  be  apportioned  to  the  date  of  such  signing  and  the  ap- 
portioned amount  due  at  that  time  shall  be  paid  as  a  debt  due 
in  bankruptcy. 

RIGHTS  TO  RENT  FROM  SHERIFFS  SALE  OF  PERSONAL 

PROPERTY. 
Act  of  1836. 

234.  When  goods  liable  to  the  distress  of  the  landlord  are 
sold  upon  execution,  the  landlord  is  entitled  to  an  amount 
not  exceeding  one  year's  rent  from  the  proceeds  of  sale.11 

Bent  Apportioned. 

235.  Rent,  although  not  then  due,  will  be  apportioned  to 
the  time  of  the  levy.12 

Landlord  Should  Notify  Sheriff  of  His  Claim. 

236.  The  landlord  should  give  notice  of  his  claim  to  the 
sheriff  before  the  sheriff  has  parted  with  the  proceeds,  and 
the  sheriff  should  give  reasonable  time  for  such  claim  to  be 
made.13 

Note  Taken  no  Waiver  of  Claim. 

237.  The  landlord  can  make  his  claim,  although  a  note  has 
been  taken  for  the  rent.14 

10  Collier  on  Bankruptcy,  349.         n  Act  June  16,  1836. 

12  Wickey  v.  Eyster.  58  Pa.  501.      13  Fisher  v.  Allen,  2  Phila.  115. 

14  Kendig  v.  Kendig,  3  Pitts.  Rep.  287. 


PREFERENCE    OF    WAGES    OVER    RENT.  97 

The  Goods  Must  Have  Been  Liable  to  Distraint. 

238.  A  landlord  cannot  claim  rent  in  arrear  out  of  the  pro- 
ceeds of  a  sheriff's  sale  of  a  tenant's  goods  which  were  not,  at 
the  time  of  the  levy,  upon  the  demised  premises,  and  liable 
to  distraint.15 


EQUITABLE  RELIEF  TO  A  TENANT  IN   CASE   RENT   IS 
CLAIMED  BY  TWO  ADVERSE  PARTIES. 

The  Nature  of  the  Proceeding. 

239.  A  tenant  filed  a  bill  in  equity  stating  that  she  was  the 
tenant  of  certain  premises,  and  was  subjected  to  conflicting 
claims  for  the  rent  due  by  her,  in  consequence  of  the  action 
of  the  landlord.  Against  these  double  claims  she  asked  to 
be  protected.  It  was  held  that  in  the  case  of  a  claim  under 
a  title  paramount  and  hostile  to  the  landlord  the  relief  would 
not  be  granted;  but  as  the  landlord  himself  had  subjected 
a  tenant  to  a  double  liability,  the  prayer  of  the  bill  was  granted 
and  the  accruing  rent  was  ordered  to  be  paid  to  a  receiver. 
In  cases  of  this  sort  the  tenant  does  not  dispute  the  title  of  his 
landlord,  but  he  affirms  the  title,  and  the  tenure  and  contract 
by  which  the  rent  is  payable,  and  puts  himself  upon  the  mere 
uncertainty  of  the  person  who  is  to  pay  the  rent.16  Some- 
times difficulties  arise  from  the  conveyances  of  the  landlord, 
or  between  his  heirs  and  devisees,  and  in  such  case  relief  to  a 
tenant  will  be  granted. 

PREFERENCE   OF  WAGES   OVER   RENT. 
Act  of  April  9,  1872. 

240.  Under  the  act  of  April  9,  1872,  and  its  supplement 
of  June  12,  1878,  the  claims  of  mechanics,  laborers  and  others 
employed  in  and  about  mines,  manufactories  or  other  busi- 
ness, are  preferred  to  claims  for  rent  of  any  of  said  mines, 

15  Grant's  Ap.,  44  Pa.  477. 

16  McCoy  v.  McMurtrie,  12  Phila.  180. 

7 


98  LANDLORD    AND    TENANT. 

manufactories,  or  other  real  estate  held  under  lease,  where 
the  lessee  or  lessees  are  the  parties  employing  the  mechanics, 
laborers  and  others. 

The  Claim  for  Wages  May  be  Sold  and  Assigned. 

241.  The  claim  for  wages  may  be  sold  and  assigned.17 

COLLECTION    OF   RENT    BY    ATTACHMENT. 
Liability  of  Bent  Due  to  be  Attached  by  an  Attachment-Execution. 

242.  Upon  a  plaintiff  obtaining  a  judgment  against  a  de- 
fendant he  can  obtain  what  is  known  as  an  attachment-execu- 
tion.    Upon  the  writ  of  attachment  being  served  on  the  ten- 
ant of  the  defendant,  debts  due  by  the  tenant  are  attached. 
Money  coming  into  the  hands  of  a  garnishee  after  the  serv- 
ice of  an  attachment-execution  and  before  it  is  dissolved  is 
bound  thereby.18     E.  owned  land  which  was  leased,  he  ap- 
plied to  be  discharged  as  a  bankrupt  December  7,  and  was 
discharged  December  12.     A  quarter's  rent  fell  due  the  I5th 
of  the  next  January  passed  to  the  assignee,  and  no  part  of  it 
was  bound  by  an  attachment-execution  served  November  21. 
Held,  that  in  foreign  attachment  the  land  itself  can  be  at- 
tached and  a  lien  which  carries  with  it  the  accruing  rents 
obtained,  but  an  attachment-execution  cannot  be  levied  of 
land,  but  only  of  debts  or  choses  in  action.     Rent  not  due 
is  an  incident  of  the  reversion,  is  a  part  of  it,  and  therefore, 
a  part  of  the  realty,  and  a  levy  on  the  reversion  which  the 
plaintiff  might  make  on  a  H.  fa.  would  have  fastened  on  the 
rent  and  carried  it  over  by  a  sale  to  the  purchaser  of  the  rever- 
sion.19 

Liability  of  Tenant  in   Case  of  Foreign  Attachment  Against  the 
Landlord. 

243.  The  landlord's  title  may  be  attached  by  a  foreign  at- 
tachment.    That  is,  a  non-resident  of  Pennsylvania  may  own 

17  Riddlesburg  C.  &  I.  Co.'s  Ap.,  114  Pa.  58. 

18  Mahon  v.  Kunkle,  50  Pa.  216.        19  Evans  v.  Hamrick,  61  Pa.  19. 


COLLECTION    OP    RENT    BY    ATTACHMENT.  99 

real  estate  in  that  state  and  suit  may  be  commenced  against 
him  to  compel  his  appearance  in  the  suit.  Upon  real  estate 
being  attached  a  copy  of  the  writ  is  served  upon  the  tenant, 
which  has  the  effect  of  sequestering  in  the  hands  of  the  ten- 
ant all  rent  due  and  which  will  fall  due  until  the  execution 
against  the  garnishee,  unless  the  attachment  is  sooner  dis- 
solved. The  court  may,  at  any  time  after  the  return  of  the 
attachment,  on  application  by  the  plaintiff,  and  affidavit  of  a 
just  cause  of  action,  issue  a  writ  to  the  sheriff,  requiring  him 
to  collect  and  recover  from  the  tenant  of  the  premises  all  such 
rent  due  or  as  may  accrue  after  the  attachment  until  further 
order  of  court.  No  such  order  can,  however,  be  made, 
unless  the  sheriff  return  that  the  tenant  holds  under  the  de- 
fendant in  the  attachment.  The  sheriff  has  the  same  power 
as  any  landlord,  and  when  he  collects  the  rent  he  pays  it  into 
court.  A  third  party  cannot  be  permitted  to  take  the  money 
out  of  court  without  a  notice  to  the  tenant  by  a  scire  facias, 
After  judgment  against  the  tenant  as  garnishee,  the  plaintiff 
can  have  execution  for  the  rents  attached  in  the  tenant's 
hands,  in  case  the  sheriff  has  not  collected  the  same;  but  in 
case  the  sheriff  shall  have  collected  the  rents,  then,  upon  an 
award  of  execution  against  the  tenant,  the  plaintiff  in  the 
attachment  suit  may  have  the  money  in  court  paid  into  his 
hands,  on  his  giving  security  to  restore.  In  case  the  rents 
are  not  sufficient  to  pay  the  judgment,  the  real  estate  is  sold 
at  sheriff's  sale  as  in  other  cases.20 

20  Act  June  13,  1836,  i  P.  &  L.  Dig.  2161,  2162,  2163,  2164;  P.  L.  568. 


CHAPTER  X. 


DISTRAINT  FOR  RENT. 


PAGE  101. 


SECTION 

244.  Act  of  March  21,  1772,  regu- 

lating distraints  for  rent. 

245.  Distraint  after  termination  of 

lease. 

246.  Distraint  by  lessor  who  has 

conveyed. 

247.  Distraint    by   executors    and 

administrators. 

248.  Distraint  by  an  assignee   of 

the  reversion. 

249.  Distraint  by  joint  tenants. 

250.  Distraint  by  tenants  in  com- 

mon. 

251.  Distraint  by  guardians. 

252.  Distraint  by  receivers. 

253.  Distraint  by  heirs,  devisees, 

etc. 

254.  What  rent  may  be  distrained 

for. 

255.  Goods  liable  to  distress. 

256.  Goods    privileged    from   dis- 

tress. 

257.  Authority  given  to  distrain. 

258.  Penalty  for  distraining  when 

no  rent  is  due. 

259.  Distraining    for    more    rent 

than  is  due. 

260.  Entering  premises  to  make  a 

distraint. 

261.  Distraining  upon  the  goods. 

262.  Rescue  of  goods  distrained. 

263.  Interference     with     distraint 

proceedings. 

100 


SECTION 

264.  Unreasonable     or     excessive 

distraint. 

265.  Placing  watchman. 

266.  Leaving  goods  on  premises. 

267.  Notice,  etc.,  to  tenant. 

268.  Tender  of  rent. 

269.  Replevin. 

270.  The  time  for  issuing  the  writ. 

271.  Order  for  the  writ. 

272.  Entering  security. 

273.  The  pleadings. 

274.  Trial  and  judgment. 

275.  Replevin  the  proper  remedy 

for    illegal    distraint    upon 
stranger's  goods. 

276.  Liability  of  landlord  for  dis- 

training   on    goods    of    a 
stranger. 

277.  Appraisement  of  the  goods. 

278.  Sale  of  goods. 

279.  Manner  of  sale. 

280.  Exemption  of  rented  pianos. 

281.  Exemption    of    sewing    ma- 

chines. 

282.  Liability  of  goods   sold   ac- 

cording to  instalment  plan. 

283.  Three    hundred    dollars    ex- 

emption law. 

284.  Appraisers  to  be  appointed. 

285.  Under-tenants    cannot   claim 

benefit. 

286.  Refusal  of  exemption. 

287.  Who  can  claim  exemption. 


DISTRAINT   FOR   RENT.  101 

SECTION  SECTION 

288.  When  claim  should  be  made.  292.  Goods  of  a  stranger  not  to 

289.  Request  for  appraisement.  be  followed. 

290.  How    claim   is   to   be    made  293.  Goods  sold  are  exempt. 

when  tenant  absent.  294.  Rent  must  be  due  at  time  of 

291.  Right   to   distrain   on   prop-  removal. 

erty    fraudulently    removed  295.  Right  to  collect  rent  not  due 

under  act  of  1772.  under  act  of  1825. 

Act  of  March  21,  1772,  Regulating  Distraints  for  Bent. 

244.  The  act  provides  that,  "When  any  goods  or  chattels 
shall  be  distrained  for  any  rent  reserved  and  due,  upon  any 
demise,  lease  or  contract  whatsoever,  and  the  tenant  or 
owner  of  the  goods  so  distrained  shall  not,  within  five  days 
next  after  such  distress  taken,  and  notice  thereof,  with  the 
cause  of  such  taking,  left  at  the  mansion-house  or  other 
most  notorious  place  on  the  premises,  charged  with  the  rent 
distrained  for  replevy  the  same  with  sufficient  security  accord- 
ing to  law;  then,  and  in  such  case,  after  such  distress  and 
notice  as  aforesaid,  and  expiration  of  said  five  days,  the  per- 
son distraining  shall  and  may,  with  the  sheriff,  under-sheriff 
or  any  constable  in  the  city  or  county,  where  such  distress 
shall  be  taken  (who  are  hereby  required  to  be  aiding  and  as- 
sisting therein),  cause  the  goods  and  chattels  so  distrained 
to  be  appraised  by  two  reputable  freeholders,  who  shall  have 
and  receive  for  their  trouble  the  sum  of  two  shillings  per  diem 
each,  and  shall  first  take  the  following  oath  or  affirmation: 
I,  A.  B.,  will  well  and  truly,  according  to  the  best  of  my  under- 
standing, appraise  the  goods  and  chattels  of  C.  D.,  distrained 
on  for  rent  by  E.  F. ;  which  oath  or  affirmation  such  sheriff, 
under-sheriff  or  constable  are  hereby  empowered  and  re- 
quired to  administer;  and,  after  such  appraisement,  shall  or 
may  after  six  days'  public  notice  lawfully  sell  the  goods  and 
chattels  so  distrained  for,  for  the  best  price  that  can  be  gotten 
for  the  same,  for  and  towards  satisfaction  of  the  rent  for  which 
the  said  goods  and  chattels  shall  be  distrained,  and  of  the 
charges  of  such  distress,  appraisement  and  sale,  leaving  the 


102  LANDLORD  AND  TENANT. 

overplus,  if  any,  in  the  hands  of  the  said  sheriff,  under-sheriff 
or  constable  for  the  owner's  use."  l 

Distraint  After  Termination  of  Lease. 

245.  By  the  act  of  March  21,  1772,  a  landlord  may  distrain 
for  arrears  of  rent  after  the  termination  of  the  lease,  provided 
his  title  or  interest  continues. 

Distraint  by  Lessor  who  has  Conveyed. 

246.  A  lessor  who  has  conveyed  has  no  right  to  distrain 
for  rent  in  arrear.1  * 

Distraint  by  Executors  and  Administrators. 

247.  Executors  or  administrators  can  distrain  for  arrear- 
ages of  rent  due  to  a  decedent  at  the  time  of  his  decease. 

Distraint  by  an  Assignee  of  the  Reversion. 

248.  When  a  lessor  assigns  his  reversion,  the  assignee  may 
distrain  under  the  statute  of  32  Henry  VIII,  in  force  in  this 
state.     When  a  landlord  conveys,  it  will  be  best  to  take  an  as- 
signment of  the  lease  to  the  purchaser. 

Distraint  by  Joint  Tenants. 

249.  One  of  several  joint  tenants  may  distrain  for  the  whole 
rent,  although  he  must  avow  jointly  with  his  companions. 

Distraint  by  Tenants  in  Common. 

250.  Tenants  in  common  not  holding  one  title,  and  pos- 
sessing several  estates,  must  distrain  severally  for  the  respect- 
ive portions,  and  avow  separately.     In  case  tenants  in  com- 
mon make  a  joint  lease,  they  may  distrain  together. 

Distraint  by  Guardians. 

251.  Guardians  may  distrain  for  rent  due  their  wards. 

Distraint  by  Receivers. 

252.  A   receiver  in   chancery   may   distrain   without   any 
special  order  of  court,  but  if  there  is  a  doubt  in  whom  the 

I  I  P.  &  L.  Dig.  2640;  I  Sm.  L.  270. 
I*  Walbridge  v.  Pruden,  102  Pa.  I. 


DISTRAINT    FOR    RENT.  103 

legal  right  exists,  he  should  get  an  order,  as  he  must  distrain 
in  the  name  of  the  person  having  the  legal  right. 

Distraint  by  Heirs,  Devisees,  etc. 

253.  Heirs  and  devisees  and  trustees  imposed  with  the 
duty  of  collecting  rent  may  distrain. 

What  Bent  may  be  Distrained  For. 

254.  The  rent  must  be  certain,  or  that  which  can  be  made 
certain.     On  a  demise  of  a  grist-mill,  the  lessee  to  render 
one-third   of   the   toll,   the   lessor   may   distrain   for  a  cer- 
tain   quantity    of    grain    the    value    being    stated.2     Rent 
payable  in   kind  by  a  share  of  grain  may  be  distrained.3 
When  the  rent  is  a  certain  quantity  of  grain  the  lessor  may 
distrain  for  so  many  bushels  in  arrear  and  name  the  value,  in 
order  that  if  the  goods  should  be  replevied  or  the  arrears 
tendered,  the  officer  may  know  what  amount  of  money  is  to 
be  raised  by  the  sale  and  in  such  case  the  tenant  may  tender 
the  arrears  in  grain.4    In  case  of  a  lease  of  a  farm  on  shares  the 
lessor  can  distrain  as  in  the  case  of  a  money  rent.5    A  lease 
was  for  a  fixed  rent  in  money,  and  at  the  additional  rent  of 
$30  per  annum  for  every  sum  of  $500  or  fractional  part 
thereof  that  should  be  expended  in  permanent  improvements 
made  by  the  landlord.     Held,  that  the  $30  additional  rent 
could  be  distrained  for.6     If  lessee  covenants  to  pay  lessor 
for  all  gas  consumed  on  the  premises,  a  sum  for  gas  con- 
sumed is  to  be  regarded  as  rent  in  arrear,  and  may  be  dis- 
trained for.7 

Goods  Liable  to  Distress. 

255.  The  goods  of  a  stranger  whilst  on  the  premises.8    The 
goods  of  a  sub-tenant.9     Household  furniture  furnished  a 

2  Fry  i'.  Jones,  2  Rawle,  11.        3  Steel  v.  Frick,  56  Pa.  1/2. 

4  Warren  v.  Forney,  13  S.  &  R.  52. 

5  Brown  r.  Jacquette,  94  Pa.  113. 

6  Detwiler  v.  Cox,  75  Pa.  200.         7  Assn.  v.  Jones,  102  Pa.  307. 

8  Karns  v.  McKinney,  74  Pa.  387. 

9  Page  v.  Middleton,  118  Pa.  546. 


104  LANDLORD  AND  TENANT. 

boarding-house  keeper  for  use  in  her  boarding-house.10     The 
goods  of  a  person  conducting  an  independent  business.11 
Fixtures  slightly  attached  to  the  premises  which  the  tenant 
may  remove  at  his  pleasure.12     Goods  on  storage  not  with  a 
warehouseman.13    The  goodsof  a  mere  renter  of  rooms.14    All 
furniture  not  in  the  actual  use  of  the  boarder,  necessary  for 
his  boarding  and  lodging  in  the  house.15     By  the  act  of 
March  21,  1872,  any  cattle  or  stock  of  tenants  feeding  or  de- 
pasturing upon  the  demised  premises;  all  sorts  of  corn,  grass, 
hops,  roots,  fruits,  pulse  or  other  produce  whatsoever,  which 
shall  be  growing  upon  the  demised  premises,  may  be  dis- 
trained for  rent,  and  the  purchaser  shall  have  free  ingress  and 
regress  to  and  from  the  same  where  growing,  to  repair  the 
fences  from  time  to  time,  and  when  ripe,  to  cut,  gather,  make, 
cure  and  lay  up  and  thresh,  and  after  to  carry  the  same  away 
in  the  same  manner  as  the  tenant  might  have  done,  had  such 
distress  never  been  made.     Goods  levied  upon,  claimed  by  a 
third  party  after  an  interpleader  narr  and  bond  filed.16     A 
brick  malt-house  erected  by  a  tenant  and  which  he  could 
remove.17 

Goods  Privileged  from  Distress. 

256.  Implements  of  trade  if  they  be  in  actual  use  at  the 
time  or  if  there  be  any  other  sufficient  distress  on  the  prem- 
ises. Things  annexed  to  the  freehold  which  the  tenant  can- 
not legally  remove.  Things  delivered  to  a  person  exercising 
a  public  trade,  to  be  carried,  wrought,  worked  up  or  man- 
aged in  the  way  of  his  trade  or  employ.  Goods  which  can- 
not be  restored  again  in  the  same  plight  and  condition. 

10  Myers  c.  Esery,  134  Pa.  177. 
n  Karns  v.  McKinney,  74  Pa.  387. 

12  Furbush  v.  Chappel,  105  Pa.  187. 

13  Page  v.  Middleton,  118  Pa.  546. 

14  Lane  v.  Steinmetz,  9  W.  N.  C.  574. 

15  Jones  v.  Goldbeck,  8  W.  N.  C.  532. 

16  Gillian  v.  Tobias,  2  W.  N.  C.  371. 

17  Spencer  v.  Darlington,  74  Pa.  286.  I 


DISTRAINT    FOR    RENT.  105 

Goods  in  the  custody  of  the  law.18  Where  the  tenant  in  the 
course  of  his  business  is  necessarily  put  in  possession  of  the 
property  of  those  with  whom  he  deals,  or  of  those  who  em- 
ploy him,  such  property  is  not  liable  to  distress  for  rent:  for 
example,  goods  on  storage,  the  goods  of  a  guest  at  a  hotel, 
the  goods  of  a  boarder  for  rent  due  by  a  boarding-house 
keeper,  grain  sent  to  a  mill,  cloth  in  a  tailor's  shop,  goods  on 
a  wharf,  goods  of  a  principal  in  the  hands  of  a  factor.19 

Authority  Given  to  Distrain. 

257.  The  landlord  may  himself  distrain  without  theinterven- 
tion  of  a  constable ;  but  a  constable  will  be  required  when  the 
inventory  and  appraisement  shall  be  made  thereafter.     It  will 
be  best,  however,  to  have  a  constable  to  attend  to  the  matter 
from  the  beginning,  so  that  one  may  have  the  benefit  of  his 
knowledge  and  experience.     It  is  customary  to  give  a  con- 
stable a  warrant  authorizing  him  to  distrain.     A  correct  bill 
or  statement  for  the  rent  due  should  be  given  to  him.     The 
constable  will  obtain  the  necessary  information  from  the  land- 
lord and  make  out  the  warrant.     A  landlord  issuing  a  warrant 
for  distress  is  required  to  credit  on  the  rent  in  arrear  only 
actual  payments  and  such  sums  as  the  parties  have  agreed  to 
treat  as  payments  on  account  of  rent.     He  is  under  no  legal 
obligation  to  deduct  any  claim   for  unliquidated   damages 
which  the  tenant  may  have  against  him.20     In  distraining  for 
rent  interest  should  not  be  added  to  the  rent.21 

Penalty  for  Distraining  when  no  Bent  is  Due. 

258.  By  §  3  of  the  act  of  March  21,  1772,  double  the  value 
of  the  goods  distrained  and  sold  with  costs  may  be  recovered. 
It  has  been  held  that  the  injured  party  may  elect  to  bring 
an  action  at  common  law,  and,  if  the  circumstances  warrant, 

18  Simpson  v.  Hartopp,  and  notes,  vol.   i,  part  II,  8th  ed.,   Smith's 
Leading  Cases,  783,  450.* 

19  Karns  v.  McKinney,  74  Pa.  387. 

20  Speneer  v.  Clinefelter,  101  Pa.  219. 

21  Bantleon  v.  Smith,  2  Binney  145. 


106  LANDLORD  AND  TENANT. 

recover  exemplary  damages  exceeding  the  amount  of  the 
statutory  penalty.22  Making  the  distress,  when  the  claim  is 
wholly  false,  is  a  mere  trespass.23 

Distraining  for  more  Bent  than  is  Due. 

259.  When  the  landlord  distrains  for  more  rent  than  is 
due  or  makes  an  excessive  distress  he  is  liable  in  an  action.24 

Entering  Premises  to  Make  a  Distraint. 

260.  A  landlord  may  not  break  open  an  outer  door  to  make 
a  distraint,  nor  may  he  break  open  or  tear  down  gates  or  en- 
closures for  that  purpose.     He  may  enter  an  open  door  or 
window.     He  may  break  open  inner  doors.    If  he  has  entered 
and  made  a  distraint  and  is  refused  admittance  afterward,  for 
the  purpose  of  proceeding  with  the  distraint,  he  may  break 
open  an  outer  door.     A  breach  of  the  peace  in  so  doing 
should  be  avoided.     The  rule  that  "a  man's  house  is  his 
castle"  extends  to  a  barn  or  outhouse.25     There  is  a  question 
as  to  whether  or  not  the  landlord  may  lift  a  latch  of  a  door, 
to  open  it,  to  make  a  distraint.     During  the  absence  of  a  ten- 
ant and  his  family  the  defendants  came  to  his  house  with  a 
landlord's  warrant,  and,  finding  the  door  locked,  opened  the 
front  door  with  a  key  which  they  brought  and  made  a  levy  on 
and  sold  certain  goods,  and  it  was  held  that  the  entry  was 
wrongful.     No  violence  was  used,  but  force  in  the  legal  sense 
was  employed  to  turn  the  key  and  open  the  door.     It  was  re- 
marked that  some  conflict  of  authority  exists  on  the  question 
whether  the  landlord  may  lift  the  latch  of  a  door  which  is 
shut  but  not  locked ;  there  was  no  need  to  enter  into  the  con- 
troversy.    However,  it  was  suggested  that  if  a  man  merely 
latches  his  door,  he  may,  perhaps,  he  regarded  as  inviting  all 
persons  to  enter  his  house  who  have  business  therein.26     In 

22  Rees  v.  Emerick,  6  S.  &  R.  286. 

23  Richards  v.  McGrath,  100  Pa.  389. 

24  Richards  v.  McGrath,  100  Pa.  389. 

25  Semayne's  Case,  vol.  i,  part  I,  Smith's  Leading  Cases  (8th  ed.),  244. 

26  Murray  v.  Vaughn,  16  Pa.  C.  C.  R.  657. 


DISTRAINT    FOR    RENT.  107 

New  York  it  has  been  held  that  opening  a  door  is  a  breaking, 
within  the  meaning  of  the  law.  Lifting  a  latch  is,  in  law, 
just  as  much  a  breaking,  as  the  forcing  of  a  door  bolted 
with  iron.  The  fastening  is  enough.  Sliding  down  a 
window  fastened  with  pulleys  will  not  be  allowed.27  This 
seems  a  very  proper  doctrine  to  hold.  In  case  of  a  place  of 
business  when  every  one  having  business  to  transact  with 
the  proprietor  has  an  invitation  to  enter  by  lifting  a  latch  dur- 
ing business  hours,  it  might  be  well  to  hold  that  a  sheriff  or 
constable  can  enter  to  levy  or  distrain,  but  in  case  of  a  dwell- 
ing-house it  would  be  very  improper  to  hold  that  they  can 
enter  by  lifting  a  latch.  In  case  of  a  dwelling-house  the  usual 
course  is  to  ring  or  knock,  and  if  there  is  no  response  the  con- 
clusion will  be  that  the  proprietor  is  away.  To  allow  a  sheriff 
or  constable  to  lift  a  latch  and  to  enter  a  dwelling-house  with 
no  one  about  would  be  intolerable.  As  long  as  the  rule  is 
to  be  made  for  all  kinds  of  buildings  without  distinction,  the 
New  York  rule  seems  to  be  the  proper  one  to  adopt.  The 
right  of  access  should  be  confined  to  an  open  door  or  window, 
the  presumption  being  in  such  cases  that  some  one  is  in  the 
house.  To  even  allow  an  entry  through  an  open  window  is 
bad  enough,  and  the  law  should  not  be  made  worse  than  it  is. 
Not  a  case  has  been  discovered  in  Pennsylvania  in  which  any 
entry  into  an  open  window  was  made,  and  the  indication  is 
that  according  to  a  custom  and  usage  in  this  state,  since  its 
foundation,  distraints  have  not  been  made  generally  in  that 
way.  If  that  is  so,  it  seems  that  an  ancient  precedent  in 
England  permitting  such  an  entry  ought  to  be  disregarded. 
That  a  sheriff  or  constable  should  be  permitted  to  get  through 
an  open  window  into  a  dwelling-house,  which  may  be  for  the 
time  unoccupied,  seems  as  bad  as  the  cases  of  lifting  a  latch 
or  unlocking  a  door  to  enter. 

Distraining  upon  the  Goods. 

261.  The  constable  enters  upon  the  premises  and  makes  a 

27  Curtis  v.  Hubbard,  i  Hill's  Rep.  N.  Y.  336. 


108  LANDLORD  AND  TENANT. 

seizure  of  such  things  as  are  liable  for  rent  and  proceeds  to 
make  an  inventory  of  so  many  of  the  goods  as  he  judges  to 
be  sufficient  to  cover  the  rent  distrained  for,  together  with 
the  charges  of  the  distress.  The  Supreme  Court  held  that 
the  seizure  of  property  necessary  to  complete  a  distress  need 
not  be  an  actual  seizure  of  the  particular  goods.  If  the  land- 
lord gives  notice  of  his  claim  for  rent,  and  declares  that  the 
goods  which  he  names  shall  not  be  removed  from  the  prem- 
ises until  the  rent  be  paid,  it  is  a  sufficient  seizure.28 

Rescue  of  Goods  Distrained. 

262.  Upon  any  pound-breach  or  rescous  of  goods  or  chat- 
tels distrained  for  rent,  the  person  or  persons  grieved  therein 
may  recover  treble  damages  and  costs  of  suit  against  the  of- 
fender or  against  the  owner  in  case  goods  afterwards  come 
to  his  possession.29    "Upon  any  pound-breach  or  rescous  of 
goods  or  chattels  distrained  for  rent,  the  person  or  persons 
grieved  thereby,  shall,  in  a  special  action  upon  the  case  for 
the  wrong  thereby  sustained,  recover  his,  her  or  their  treble 
damages  and  costs  of  suit,  against  the  offender  or  offenders 
in  such  rescous  or  pound-breach,  any  or  either  of  them ;  or 
against  the  owner  or  owners  of  the  goods  distrained,  in  case 
the  same  be  afterwards  found  to  have  come  to  his  or  their  use 
or  possession."  30     In  case  of  pound-breach  the  distrainer 
may  follow  the  goods  and  retake  them  and  impound  them 
again.31 

Interference  with  Distraint  Proceedings. 

263.  A   landlord's   distress  warrant   is   not   legal   process 
within  the  meaning  of  §  8  of  the  act  of  March  31,  1860,  and 
an  indictment  will  not  lie  under  that  section  for  resisting  the 
execution  of  that  warrant.     Until  an  appraisement  has  been 
made  the  constable  is  only  the  landlord's  bailiff.     After  the 

28  Furbush  v.  Chappel,  105  Pa.  187. 

29  Act  March  21,  1772,  i  P.  &  L.  Dig.  2642;  P.  L.  370. 

30  Act  March  21,  1772.        31  Woglam  v.  Cowperthwaite,  2  Dall.  67. 


DISTRAINT    FOR    RENT.  109 

appraisement  the  case  might  be  different.  The  act  of  1772 
gives  remedy  for  the  rescue  of  goods  distrained,  but  indict- 
ment will  not  lie.32  The  owner  of  a  leased  piano  was  held 
liable  in  damages  for  removing  it  from  the  premises  of  the 
lessee  after  the  landlord  had  distrained  upon  it  for  rent;  but 
treble  damages  under  the  act  of  March  21,  1772,  were  not  re- 
coverable, because  the  owner  had  no  knowledge  of  the  dis- 
tress. No  notice  that  the  piano  was  leased  or  hired  was 
given  to  the  landlord  as  required  by  the  act  of  May  13,  1876, 
which  exempts  musical  instruments  from  levy  and  sale,  or  an 
execution  or  distress  for  rent.33 

Unreasonable  or  Excessive  Distraint. 

264.  By  the  statute  of  Marlebridge  (52  Hen.  Ill  c.  4),  in 
force  in  Pennsylvania,  "distresses  shall  be  reasonable,  and  not 
too  great;  and  they  that  make  unreasonable  and  undue  dis- 
tresses shall  be  grievously  amerced  for  the  excess  of  such  dis- 
tress." The  remedy  for  a  party  aggrieved  under  this  statute 
is  by  an  action  on  the  case  and  not  trover  or  trespass.34  It 
often  happens  that  constables,  in  giving  notice  to  tenants  of 
a  distraint  enumerate  certain  articles  and  then  notify  the  ten- 
ant that  all  the  goods  on  the  premises  are  distrained  upon. 
If  this  be  so,  it  would  seem  that  great  injustice  may  be 
done  a  tenant,  especially  when  all  the  goods  in  a 
store,  factory  or  the  like,  are  distrained  upon.  It 
appears  to  be  the  duty  of  the  constable  to  exercise  his 
judgment  as  to  the  quantity  of  goods  to  be  distrained  upon ; 
and,  consequently,  the  rule  is,  that  the  landlord  will  not  be 
liable  for  a  trifling  excess.  To  hold  the  landlord  liable,  it 
is  not  necessary  that  the  proceedings  should  have  gone 
further  than  a  levy  under  a  distress  warrant.  If  there  be  but 
one  thing  on  the  premises  which  can  be  taken,  so  that  the 
landlord  must  either  take  it  or  go  without  his  distress,  an 

32  Commonwealth  v.  Nichols,  4  Pa.  Dis.  R.  318. 

33  Delp  v.  Hoffman,  7  Pa.  Dis.  R.  256. 

34  Taylor's  Landlord  and  Tenant,  §  730. 


110  LANDLORD  AND  TENANT. 

action  will  not  lie,  although  the  value  of  the  thing  taken 
greatly  exceed  the  amount  of  rent  due.  In  case  the  tenant 
causes  a  writ  of  replevin  to  be  issued,  he  will  be  required  to 
give  security  for  double  the  value  of  the  goods  distrained 
upon ;  and,  in  some  cases,  the  amount  of  this  security  may  be 
enormous,  by  reason  of  an  excessive  distraint. 

Placing  Watchman. 

265.  Upon  the  distraint  being  made,  a  watchman  may  be 
placed  in  charge  of  the  goods  to  prevent  their  sale  or  removal, 
or  the  landlord  may  remove  the  goods  immediately,  and  the 
tenant  should  have  notice  of  the  place  to  which  the  goods 
have  been  removed. 

Leaving  Goods  on  Premises. 

266.  It  is  usual  to  leave  the  goods  on  the  premises,  the 
landlord  taking  the  risk  of  removal,  or  placing  a  watchman 
over  them,  or  taking  security  for  the  goods. 

Notice,  etc.,  to  Tenant. 

267.  A  copy  of  the  inventory,  with  a  notice  of  the  distress, 
and  the  cause  of  the  taking,  should  be  left  in  the  house  with 
the  tenant,  or  some  one  for  him.     Within  five  days  next  after 
the  distress  taken,  and  notice  thereof  or  before  the  sale,  if 
the  tenant  has  any  defence  to  make  to  the  payment  of  the 
rent,  or  the  distress,  he  may  cause  the  goods  distrained  upon 
to  be  replevied. 

Tender  of  Rent. 

268.  In  order  to  stop  a  distraint  or  other  proceeding  of 
the  landlord,  it  sometimes  will  become  necessary  to  pay  the 
rent;  and,  in  endeavoring  to  do  so,  the  laws  respecting  a 
tender  of  money  should  be   regarded.     To  make   a   legal 
tender,  the  proper  kind  of  money  should  be  obtained,  such 
as   gold   coin,   legal   tender   notes,   etc.     The   debtor   must 
actually  produce  and  offer  the  money  to  the  party  entitled  to 
payment,  or  his  agent  authorized  to  receive  payment  with- 


DISTRAINT    FOR    RENT.  Ill 

out  qualification  or  condition.  Where  a  sale  of  goods  under 
a  distress  for  rent  has  been  commenced  and  the  tenant  tend- 
ers the  landlord  the  difference  between  the  amount  realized 
by  the  sale  and  the  full  amount  of  rent  claimed  with  costs,  the 
refusal  of  the  tender  and  the  continuance  of  the  sale  render 
the  landlord  liable  in  an  action  of  trespass,  for  the  value  of 
the  goods  afterwards  sold,  notwithstanding  the  proceedings 
before  the  tender  were  legal  and  regular.35  The  tender  was 
made  to  the  constable  and  the  attorney  for  the  landlord  in 
legal  tender  notes.  Silver  coins  less  than  a  dollar  are  made 
a  legal  tender  for  debts  not  over  $io.3G  Trade  dollars  are  not 
good  for  legal  tender.37  Silver  dollars  of  the  weight  of  four 
hundred  and  twelve  and  one-quarter  grains  Troy,  of  standard 
silver  are  made  a  legal  tender,  except  where  otherwise  stipu- 
lated by  contract.38  Foreign  gold  or  silver  coins  are  not  a 
legal  tender.39  Gold  coins  of  the  United  States  are  made  a 
legal  tender.40  United  States  notes  are  made  a  legal  tender.41 
Bank  notes  are  not  made  good  for  a  legal  tender.  A  tender 
was  made  of  notes  of  the  Branch  Bank  of  Harrisburg  and  it 
was  held  that  they  were  not  a  legal  tender.42  If  a  tender 
is  made  in  bank  notes  not  made  a  legal  tender  and  they 
are  not  objected  to  on  that  ground  but  the  tender  is  refused  it 
seems  that  the  tender  will  be  good  or  excused.43 

Replevin. 

269.  If  a  landlord  should  distrain  for  rent  and  there  should 
be  objections  to  make  to  his  so  doing,  action  of  replevin  can 
be  brought. 

35  Richards  v.  McGrath,  100  Pa.  389. 

36  Vol.  i.  Sup.  Rev.  Stat.  U.  S.  264. 

37  Vol.  i,  Sup.  Rev.  Stat,  U.  S.  124. 

38  Vol.  i.  Sup.  Rev.  Stat.  U.  S.  152. 

39  Sec.  3584,  Rev.  Stat.  U.  S.  708. 

40  Sec.  3585,  Rev.  Stat.  U.  S.  708. 

41  Sec.  3588,  Rev.  Stat.  U.  S.  708. 

42  Cornell  v.  Green,  10  S.  &  R.  14. 

43  Brown  v.  Dysinger,  I  Rawle,  408. 


112  LANDLORD  AND  TENANT. 

The  Time  for  Issuing  the  Writ. 

270.  After  the  distraint,  the  landlord  cannot  proceed  to 
appraise  and  sell  until  five  days  have  expired.     Some  persons 
have  the  impression  that  the  writ  of  replevin  must  be  issued 
and  served  within  the  five  days.     They  are  mistaken,  for  the 
tenant  can  have  the  replevin  any  time  before  the  sale.     How- 
ever, unless  the  writ  be  issued  within  the  five  days,  the  con- 
stable may  proceed  with  the  appraisement  and  sale. 

Order  for  the  Writ. 

271.  The  order  for  the  writ  to  be  taken  to  the  clerk  of  the 
court  of  common  pleas  can  be  as  follows : 

A.  B. 

v. 

C.  D.,  landlord ; 
E.  R,  bailiff. 

Issue  writ  of  replevin  for  (here  describe  the  goods  dis- 
trained upon). 

Value  of  goods,  $ — ;  Rent,  $ — . 

Returnable  (fill  in  the  next  return-day  of  writs). 

G.  H.,  Attorney  for  Plaintiff. 
Entering  Security. 

272.  Upon  the  receipt  of  the  order  for  the  writ,  the  clerk 
of  the  court  will  prepare  the  writ  and  deliver  it  to  the  plain- 
tiff's attorney ;  but  before  the  sheriff  serves  the  writ,  security 
will  have  to  be  given  as  required  by  the  act  of  1772.     The 
bond  must  be  executed  by  the  plaintiff  and  one  responsible 
person  or  trust  company  as  surety  for  double  the  value  of  the 
goods  distrained.     The  sheriff  usually  takes  the  word  of  the 
plaintiff  or  his  attorney  as  to  the  value  of  the  goods.     If 
the  value  of  the  goods  should  be  double  the  amount  of  the 
rent,  it  seems  as  if  the  valuation  ought  to  be  satisfactory. 
The  bond  is  prepared  by  the  sheriff,  and  is  made  to  him, 
and  is  conditioned  for  the  prosecution  by  the  plaintiff  of  his 
suit  against  the  defendant  with  effect  and  without  delay,  and 
for  the  return  of  the  goods  in  case  the  decision  of  the  suit 


DISTRAINT    FOK    RENT.  113 

shall  result  in  favor  of  the  defendant.  Formerly  in  the  city 
of  Philadelphia,  the  sheriff  was  liable  for  not  taking  proper 
security,  but  he  now  is  relieved  of  the  responsibility  by  the 
act  of  April  10,  1873,  which  requires  the  bond  and  security 
to  be  approved  by  a  judge.  In  Philadelphia  the  surety 
makes  an  affidavit  as  to  his  property  (as  required  by  the  rule 
of  court),  which  is  presented  to  a  judge.  Upon  the  judge's 
signing  his  approval,  the  clerk  of  the  court  certifies  such  ap- 
proval to  the  sheriff  who  enters  the  writ  and  prepares  the 
bond.  Upon  the  execution  of  the  bond,  the  deputy  sheriff 
serves  the  writ.  Upon  the  constable  being  served  with  the 
writ  he  usually  stops  proceedings  and  surrenders  possession 
of  the  goods. 

The  Pleadings. 

273.  The  plaintiff  should  promptly  file  the  declaration. 
The  defendant  thereupon  files  what  is  called  an  avowry, 
whereby  he  justifies  his  action  by  stating  the  renting  and  the 
distraint  for  rent.  In  case  an  owner  of  goods,  not  the  tenant, 
claims  that  the  goods  belong  to  him,  and  that  they  are  not 
liable  to  be  distrained  upon,  he  sets  forth  the  necessary  facts 
to  raise  issue  as  to  property.  The  plaintiff  having  filed  a 
reply  joining  issue,  the  case  is  then  ready  for  trial.  The  con- 
stable, if  he  is  joined,  files  what  is  called  a  cognizance,  wherein 
he  justifies  his  conduct  as  bailiff.  Where,  by  a  lease,  the 
landlord  has  the  right  to  distrain  the  tenant's  goods  for  thirty 
days  after  removal  from  the  demised  premises,  the  plea,  hors 
de  son  fee,  is  a  proper  one  to  raise  the  issue  whether  the  dis- 
tress was  made  within  thirty  days  after  the  removal  of  the 
goods  distrained.  The  plea  means,  "I  am  no  longer  your 
tenant  and  am  with  my  goods  out  of  your  land."  In  England 
at  common  law,  the  property  of  the  tenant  could  never  be 
taken  after  the  disruption  of  the  relation  of  landlord  and  ten- 
ant and  a  removal  from  the  demised  premises.  To  the  said 
plea  the  landlord  can  reply  that,  "The  goods  so  distrained 


114  LANDLORD  AND  TENANT. 

were,  by  the  terms  of  the  lease,  made  liable  to  distress  during 
thirty  days  after  removal  and  were  distrained  within  said 
thirty  days."  44 

Trial  and  Judgment. 

274.  By  the  statute  of  17  Charles  II,  in  force  in  Pennsyl- 
vania, the  jury  may  find  the  amount  of  the  rent  in  arrear  and 
the  value  of  the  goods  distrained  upon.     Upon  obtaining 
judgment,  the  landlord  can  have  an  execution  to  recover  the 
amount  of  rent  found  to  be  due.     If  the  amount  of  rent  is  not 
recovered  by  such  execution,  the  landlord  brings  suit  on  the 
replevin  bond.     He  should  have  an  assignment  made  by  the 
sheriff  and  he  should  bring  suit  in  his  own  name;  concern- 
ing the  value  of  the  goods,  he  can  offer  the  finding  of  the  jury 
as  to  their  worth.     The  attorney  for  the  landlord  should  in- 
form the  judge  that  his  client  desires  the  benefit  of  the  law, 
and  that  he  desires  the  judge  to  instruct  the  jury  to  find  the 
rent  in  arrear,  if  any,  and  the  value  of  the  goods.     If  this  is 
not  done,  the  landlord  will  be  entitled  only  to  a  judgment  for 
the  return  of  the  goods  and  for  such  damages  as  the  jury  may 
find.     In  such  case,  however,  the  landlord  will  have  his  right 
of  action  upon  his  replevin  bond.     As  the  landlord  cannot 
claim  property  in  him,  a  claim-property  bond  would  be  out 
of  place. 

Replevin  the  Proper  Remedy  for  Illegal  Distraint  upon  Strangers' 
Goods. 

275.  The  owner  of  a  chattel  in  the  possession  of  a  tenant, 
which  has  been  distrained  for  rent  and  sold,  cannot  maintain 
trover  for  it  against  the  landlord  where  notice  of  the  distress 
was  given  to  the  tenant.     The  notice  may  be  given  to  the 
tenant  or  to  the  owner  at  the  landlord's  discretion.      The 
principal  object  of  notice  is  to  enable  and,  indeed,  compel  the 
proper  party  to  contest  the  legality  of  the  distress  before 

44  Mather  v.  Wood,  i  Pa.  Dis.  Rep.  793. 


DISTRAINT   FOR    RENT.  115 

the  property  is  sold,  and  thus  prevent  the  landlord's  being 
involved  in  unforeseen  difficulties.45 

Liability  of  Landlord  for  Distraining  on  Goods  of  a  Stranger.  . 

276.  Under  the  act  of  March  21,   1772,  replevin  is  the 
proper  remedy  to  be  used  by  a  person  whose  goods  have 
been  improperly  distrained  upon  by  a  landlord  for  rent  due 
by  a  tenant.     Where  such  a  person  receives  notice  of  the  dis- 
tress, and  the  landlord  postpones  the  sale  to  give  him  an  op- 
portunity to  bring  replevin,  which  he  refused  to  do,  he  can- 
not after  the  sale  bring  trespass  against  the  landlord  for  the 
value  of  the  goods.46     A  landlord  who  distrains  upon  goods 
knowing  them  to  be  the  property  of  another,  left  with  the 
tenant  for  sale  on  commission,  is  a  trespasser  ab  initio,  and 
is  liable  to  the  owner  of  the  goods  in  an  action  of  trespass.47 

Appraisement  of  the  Goods. 

277.  At  the  expiration  of  the  five  days,  the  person  distrain- 
ing, with  the  sheriff,  under-sheriff  or  constable,  causes  the 
goods  distrained  upon  to  be  appraised  by  two  reputable  free- 
holders.    The  day  of  the  distress  is  to  be  excluded  in  the 
computation  of  the  five  days.48     The  appraisers  are  sworn  by 
the  officer  to  appraise  the  goods.     Before  an  appraisement 
can  be  lawfully  made,  five  clear  days  must  intervene  after  the 
distress  taken;  and  notice  thereof,  with  the  cause  of  taking 
must  be  left  at  the  mansion-house  or  most  notorious  place  on 
the  premises.     Notice  must  be  in  writing  and  should  inform 
the  tenant  or  the  owner  of  the  goods  taken  and  the  amount 
of  rent  in  arrear.49     Before  a  landlord  can  lawfully  sell  goods 
distrained  for  rent,  he  must  cause  the  goods  and  chattels  so 
distrained  to  be  appraised  by  two  reputable  freeholders.     An 
appraisement  by  three  persons  was  irregular.     As  the  pro- 

45  Caldclegh  v.  Hollingsworth,  8  W.  &  S.  302. 

46  Esterly  Machine  Co.  v.  Spencer,  147  Pa.  466. 

47  Brown  v.  Stackhouse,  155  Pa.  582. 

48  Brisbin  v.  Wilson,  60  Pa.  452. 

49  Snyder  v.  Boring,  4  Pa.  Super.  Ct.  Rep.  196. 


116  LANDLORD  AND  TENANT. 

ceeding  is  statutory,  the  direction  of  the  statute  must  be  fol- 
lowed, or  its  protection  will  be  lost.  If  the  seizure  is  ir- 
regular it  is  a  trespass ;  if  the  seizure  is  regular,  but  the  sub- 
sequent steps  are  not  in  accordance  with  the  statute,  the 
landlord  becomes  a  trespasser  ab  initio.50  The  landlord  is 
not  compelled  to  weigh  and  measure  all  the  goods  in  a  store 
which  he  has  distrained,  nor  need  he  detail  every  article  or  no- 
tion in  a  stock  of  millinery  goods.  The  inventory  should  be 
so  full  and  complete  as  to  inform  the  tenant  of  the  goods 
distrained  and  for  which  he  may  issue  a  replevin.51  "A  fail- 
ure to  have  the  appraisement  made  as  required  by  the  statute 
is  fatal  to  the  proceeding  of  distress,  and  renders  the  land- 
lord liable  as  a  trespasser  ab  initio"  52  It  is  immaterial 
whether  the  property  belongs  to  the  tenant  or  to  a  stranger, 
so  far  as  the  liability  for  a  tortious  sale  is  concerned.53 

Sale  of  Goods. 

278.  After  the  goods  are  appraised,  they  are  s.old  at  public 
sale  by  the  constable,  after  the  six  days'  public  notice. 
Goods  distrained  for  rent  may  be  impounded  on  the  premises 
for  a  reasonable  time  after  five  days,  and  seven  days 
would  be  such  reasonable  time.54  As  there  has  been  some 
doubt  as  to  the  right  to  keep  the  goods  in  the  tenant's  house 
after  the  five  days,  sometimes  the  precaution  is  taken  to  get 
the  tenant's  consent  to  such  occupancy.  At  all  events,  if 
the  goods  are  to  be  kept  over  such  reasonable  time,  the  ten- 
ant's consent  should  be  procured.  In  computing  the  six 
days'  notice  of  the  sale,  the  day  on  which  the  notice  of  the 
sale  is  given  is  excluded,  and  the  day  of  the  sale  included. 
In  computing  the  five  days  which  must  elapse  before  the  ap- 
praisement, the  day  of  seizure  is  excluded.  If  the  fifth  day 

50  Snyder  v.  Boring,  4  Pa.  Super.  Ct.  Rep.  196. 

51  Richards  r.  McGrath,  100  Pa.  389. 

52  Wyke  v.  Wilson,  173  Pa.  12.  • 

53  Hazlett  v.  Mangel,  9  Pa.  Super.  Ct.  139. 

54  Wiatt  v.  Ewing,  7  Phila.  R.  195. 


DISTRAINT    FOR    RENT.  117 

falls  on  Sunday  it  is  also  excluded,  so  that  if  goods  be  dis- 
trained on  Tuesday,  an  appraisement  cannot  properly  be  made 
before  the  succeeding  Tuesday.  The  appraisement  being 
made  on  Tuesday,  the  five  days  allowed  for  a  replevin  will 
end  on  Monday.65  A  distress  with  notice  thereof  on  Febru- 
ary I,  and  an  appraisement  with  a  notice  on  February  7,  of 
the  sale  to  take  place  on  February  13,  and  a  sale  in  pursuance 
of  such  notice  will  satisfy  the  act  of  March  21,  1772,  regulat- 
ing the  proceedings  in  cases  of  distress  for  rent.  The  ap- 
praisement and  "six  days'  public  notice"  required  by  the 
statute  are,  in  the  order  named,  conditions  precedent  to  a 
sale;  but  there  is  no  express  provision  in  it  or  necessary  im- 
plication from  its  language,  which  postpones  the  notice  of 
the  sale  to  a  day  subsequent  to  the  appraisement.  A  notice 
of  the  distress  is  valid  if  served  on  the  day  that  the  distress 
is  made.  It  sustains  the  same  relation  to  the  distress,  in  the 
order  of  procedure,  as  the  notice  of  sale  does  to  the  appraise- 
ment. It  is  as  necessary  to  a  valid  appraisement  of  the  prop- 
erty distrained,  as  a  six  days'  public  notice  is  to  a  lawful  sale 
of  it.  A  notice  given  on  Tuesday,  the  day  of  the  appraise- 
ment, is  sufficient  to  authorize  a  sale  on  the  following  Monday 
of  the  goods  distrained;  the  intervening  Sunday  has  no  effect 
on  the  computation,  because  it  did  not  fall  on  the  last  day  of 
the  period.  The  computation  of  time  in  such  case  is  governed 
by  the  act  of  June  20,  1883,  providing  for  the  exclusion  of  the 
first  and  the  inclusion  of  the  last  day.56  A  postponement  of 
the  sale  for  a  week  will  be  permissible.57  In  case  of  a  post- 
ponement of  a  sale,  it  will  be  well  to  get  the  written  consent 
of  the  tenant. 

Manner  of  Sale. 

279.  Goods  must  be  sold  separately  or  in  parcels,  not  the 
entire  stock  in  the  mass.     They  may  be  sold  in  such  lots  as 

55  Davis  v.  Davis,  128  Pa.  100. 

56  Whitton  v.  Milligan,  153  Pa.  376. 

57  Holland  v.  Townsend,  136  Pa.  392. 


118  LANDLORD  AND  TENANT. 

shall  be  best  calculated  to  bring  the  highest  price.     If  sold  in 
too  large  parcels  the  injured  party  may  have  a  remedy.58 

Exemption  of  Rented  Pianos. 

280.  By  the  act  of  May  13,  1876,  all  pianos,  melodeons 
and  organs  leased  or  hired  by  any  person  or  persons,  residing 
in  this  commonwealth,  shall  be  exempt  from  levy  and  sale  on 
execution  and  distress  for  rent  due  by  such  person  or  persons 
so  leasing  or  hiring  any  such  piano  or  pianos,  melodeon  or 
melodeons,  organ  or  organs,  in  addition  to  any  articles  now 
exempt  by  law;  Provided,  that  the  owner  or  owners  of  any 
such  piano,  melodeon  or  organ,  or  his  or  their  agent  or  the 
person  or  persons  so  leasing  or  hiring  the  same,  shall  give 
notice  to  the  landlord,  or  his  agent,  that  the  instrument  is 
leased  or  hired.     In  order  to  have  a  piano  exempted  under 
the  act  of  May  13,  1876,  the  notice  required  by  the  law  should 
be  given  to  the  lessor  when  the  piano  is  delivered  to  the  ten- 
ant, or  before  the  right  of  distress  has  accrued.59     A  piano 
was  rented  to  the  wife  of  a  tenant  for  her  private  use,  with 
the  privilege  of  purchasing,  and  the  piano  was  distrained  upon 
for  rent,  and  it  \vas  held  that  it  was  simply  the  property  of  a 
stranger  found  on  the  demised  premises,  and  left  for  no  pur- 
pose of  trade.     It  did  not  belong  to  or  further  the  business 
of  the  tenant,  but  was  simply  leased  by  his  wife.60 

Exemption  of  Sewing  Machines. 

281.  It  would  seem  that  sewing  machines  rented  or  hired 
are  unprotected  from  distress  for  rent.     By  the  act  of  April 
17,  1869,  sewing  machines  belonging  to  seamstresses  are  ex- 
empted from  distress.     By  the  act  of  March  4,  1870,  sew- 
ing machines  used  and  owned  by  private  families  are  also  ex- 
empt.    A  tenant  rented  a  sewing  machine.     A    landlord's 
warrant  was  issued  for  the  collection  of  rent,  under  which 

58  Richards  v.  McGrath,  too  Pa.  389. 

59  McGeary  v.  Mellor,  87  Pa.  461;  Rohrer  v.  Cunningham,  138  Pa.  162. 

60  Kleber  v.  Ward,  88  Pa.  93. 


DISTRAINT    FOR    RENT.  119 

distress  was  made  upon  some  personal  property,  including 
the  sewing  machine.  The  lease  contained  a  waiver  of  ex- 
emption. At  the  hour  fixed  for  the  constable's  sale  the 
owner  of  the  sewing  machine  gave  the  constable  notice  that 
it  was  his  property,  and  forbade  his  selling  the  same  as  the 
property  of  the  tenant,  as  it  was  only  leased  to  him.  The 
constable  sold  the  other  property,  but  not  the  sewing  ma- 
chine, and  adjourned  the  sale  of  it  for  one  week,  notifying  the 
owner  of  the  fact.  At  the  expiration  of  the  week,  nothing 
having  been  done  in  the  meantime  by  the  plaintiff,  the  con- 
stable put  up  the  machine  and  sold  to  E.  Batterton,  who  took 
possession  of  it.  The  owner  of  the  machine  then  sued  out 
a  writ  of  replevin  for  it,  and  summoned  the  purchaser.  The 
Supreme  Court  held,  first,  that  the  machine  was  not  exempt 
under  the  act  of  April  17,  1869,  because  it  did  not  belong  to 
a  seamstress;  second,  it  was  not  exempt  under  the  act  of 
March  4,  1870,  as  the  property  of  the  owner,  because  that 
act  expressly  excepts  from  its  operation  "persons  who  keep 
sewing  machines  for  sate  or  hire;"  third,  that  the  owner 
could  not  claim  it  exempt  as  the  property  of  the  lessee.  The 
latter  had  left  it  upon  the  premises,  from  which  he  had  moved, 
and  made  no  claim  of  ownership  or  demand  to  have  it  ex- 
empted, and  at  the  date  of  the  sale  the  lease  had  expired.  It 
was  not  at  that  time  a  sewing  machine  "owned  and  used"  by 
a  private  family  within  the  meaning  of  the  act ;  and  that  the 
owner  should  have  caused  the  replevin  to  be  issued  before  the 
sale.  The  claim  for  exemption  is  a  personal  privilege,  and 
must  be  claimed  by  the  tenant.61 

Liability  of  Goods  Sold  According  to  Instalment  Plan. 

282.  The  rule  that  the  goods  of  a  stranger  on  demised 
premises  in  the  way  of  business  are  not  subject  to  distress  is 
this :  That  "where  the  tenant  in  the  course  of  his  business  is 
necessarily  put  in  possession  of  property  of  those  with  whom 

61  Bogert  v.  Batterton,  6  Pa.  Super.  Ct.  R.  468' 


120  LANDLORD  AND  TENANT. 

he  deals,  or  those  who  employ  him,  such  property  although 
on  demised  premises  is  not  liable  for  rent  due  thereon  from 
the  tenant."  The  plaintiff  was  a  furniture  dealer  and  furnished 
certain  furniture  to  the  keeper  of  a  boarding-house  who 
agreed  to  pay  $425  for  the  use  of  the  articles.  She 
agreed  to  pay  $25  per  week  until  the  amount  was  paid,  when 
said  rent  should  cease,  and  the  articles  should  become  her 
property  absolutely.  It  was  provided  that  the  title  to  the 
furniture  should  remain  in  the  dealer  until  the  tenant's  obli- 
gation was  complied  with.  These  goods  were  distrained 
upon,  were  purchased  at  a  constable's  sale  and  removed  by 
the  purchaser.  Held,  that  it  was  not  the  furniture  of  a 
boarder,  but  it  was  furniture  in  use  of  the  proprietor  of  the 
house.  As  between  the  tenant  and  the  furniture  dealer  the 
property  belonged  to  the  latter,  but  as  between  the  tenant  and 
her  landlord,  the  same  belonged  to  her,  and  was  liable  to  dis- 
tress.62 

Three  Hundred  Dollars  Exemption  Law. 

283.  By  the  act  of  April  9,  1849,  property  to  the  value  of 
three  hundred  dollars  ($300),  exclusive  of  all  wearing  apparel 
of  the  tenant  arid  his  family,  and  all  Bibles  and  school  books 
in  use  in  the  family  [which  remain  exempted  as  theretofore], 
owned  by  or  in  possession  of  the  tenant,  are  exempted  from 
distress  for  rent. 

Appraisers  to  be  Appointed. 

284.  The  constable,  upon  the  request  of  the  tenant,  sum- 
mons three  disinterested  and  competent  persons,  who  are 
sworn  or  affirmed  to  appraise  the  property  which  the  tenant 
may  elect  to  retain.     The  wife's  separate  property  may  be 
distrained  for  rent  due  by  the  husband ;  the  married  woman's 
act,  protecting  the  separate  property  of  a  married  woman, 
does  not  alter  the  law  of  landlord  and  tenant.63 

62  Myers  v.  Esery,  134  Pa.  177.        • 

63  Blanche  v.  Bradford,  38  Pa.  344. 


DISTRAINT   FOR   RENT.  121 

Under-Tenants  Cannot  Claim  Benefit. 

285.  Tenants  held  demised  premises  expressly  subject  to 
the  condition  in  the  original  lease,  that  they  would  not  assign 
their  term  or  sub-let  the  premises  without  the  consent  of  the 
landlord.     The  tenants  assigned  the  lease  in  violation  of  the 
condition.     There  was  no  consent  of  the  landlord  to  the  as- 
signment,  and   no   recognition  by  him   of  the   sub-tenant. 
Neither  the  relation  of  landlord  and  tenant,  nor  of  debtor  and 
creditor,  was  established.     It  was  held  that  the  assignee,  not 
being  a  debtor  for  the  rent,  was  not  entitled  to  the  exemption 
of  the  statute  as  to  the  goods  of  his  distrained  upon.     The 
claim  was  made  against  the  original  tenants.     They  were  the 
debtors,  within  the  meaning  of  the  act,  but  they  claimed  no 
exemption;  and  those  who  came  in  under  them,  without  the 
landlord's  consent,  had  no  right  to  claim  it.64 

Refusal  of  Exemption. 

286.  If  a  tenant's  demand  of  exemption  is  refused,  and  the 
officer  proceeds  to  sell,  the  tenant's  right  to  the  property  is 
gone,  and  a  right  of  action  only  remains  for  the  wrong  done 
by  refusing  the  demand.65 

Who  can  Claim  Exemption. 

287.  Corporations,  associations  and  partnerships  cannot 
claim  the  exemption  law  for  their  property.     The  claim  must 
be  individual.66     A  bachelor  debtor  may  have  the  bene- 
fit of  the  exemption  law,  though  it  is  generally  spoken  of  as 
intended  for  the  debtor's  family.67     Non-residents  are  not 
entitled  to  the  benefit  of  the  law.68 

When  Claim  Should  be  Made. 

288.  A  claim  for  exemption  should  be  made  promptly.     It 

64  Rosenberger  v.  Hallowell,  35  Pa.  369;  Bogert  v.  Batterton,  6  Pa. 
Super.  Ct.  R.  468. 

65  Bonsall  v.  Comly,  44  Pa.  442.         66  Bonsall  v.  Comly,  44  Pa.  442. 

67  Dieffenderfer  v.  Fisher,  3  Grant,  30. 

68  Snow  v.  Dill,  6  W.  N.  C.  330. 


122  LANDLORD  AND  TENANT. 

should  be  made  before  the  sale,  and  generally  before  the  ad- 
vertisements are  put  up.69 

Bequest  for  Appraisement. 

289.  The  defendant  must  demand  an  appraisement;  but 
any  words  which  apprise  the  officer  of  his  desire  for  the 
benefit  of  the  exemption  are  sufficient.70 

How  Claim  is  to  be  Made  when  Tenant  is  Absent. 

290.  During  the  absence  of  the  defendant,  a  child  or  any 
one  of  his  family  of  proper  age,  his  wife,  attorney  or  agent, 
and  perhaps  a  neighbor  or  relation  as  next  friend,  may  claim 
the  benefit  of  the  law.71 

Bight  to  Distrain  on  Property  Fraudulently  Removed  under  Act 
of  1772. 

291.  By  the  act  of  March  21,  1772,  if  a  tenant  fraudulently 
or  clandestinely  removes  his  goods  from  the  demised  prem- 
ises with  intent  to  prevent  a  distraint,  the  landlord,  within 
thirty  days  after  the  goods  are  removed,  can  take  and  seize 
such  goods  wherever  the  same  may  be  found,  as  a  distress  for 
the  arrears  of  rent,  provided  the  goods  have  not  been  sold 
bona  fide  and  for  a  valuable  consideration  before  such  seizure. 

A  removal  of  the  goods  in  the  night  is  in  itself  clandestine, 
and  is  sufficient  evidence  of  fraud.  .  .  .  Suppose  the  landlord 
should  come  to  the  premises  for  the  purpose  of  distraining, 
and  should  refrain  from  a  distress  on  the  tenant's  promising 
that  he  would  pay  the  rent  or  give  satisfactory  security  by  a 
certain  hour,  and  in  the  meantime  his  goods  should  remain 
where  they  were;  and  after  this  the  tenant  should  remove  the 
goods  as  soon  as  the  landlord's  back  was  turned,  and  all  this 
in  the  daytime — this  would  be  a  palpable  fraud.  But  where 
there  is  no  evidence  of  more  than  a  simple  removal  in  the 
daytime  without  the  knowledge  of  the  landlord,  there  is  no 
ground  for  presumption  of  fraud,  nor  will  the  law  suffer  it 

69  Diehl  v.  Holben,  39  Pa.  213.         70  Diehl  v.  Holben,  39  Pa.  213. 
71  Wilson  v.  McElroy,  32  Pa.  82;  Meitzler's  Ap.,  73  Pa.  368. 


DISTRAINT    FOR    RENT. 

to  be  presumed.  The  tenant  is  not  bound  to  give  notice  to 
the  landlord  that  he  is  about  to  remove  his  goods,  nor  is  he 
under  any  obligation  not  to  remove  them;  it  is  the  landlord's 
business  to  be  vigilant;  he  lias  the  right  to  distrain  whenever 
the  rent  has  become  due,  and  if  he  neglects  it  he  runs  the  risk 
of  losing  this  extraordinary  remedy  with  which  the  law  has 
favored  him.72 

Goods  of  a  Stranger  Not  to  be  Followed. 

292.  The  goods  of  a  stranger  removed  from  the  premises 
before  levy  are  not  liable  to  be  followed  and  levied  on  off  the 
premises  under  the  act  of  I772.73 

Goods  Sold  are  Exempt. 

293.  If  goods  have  been  sold  to  a  bona  fide  purchaser 
having  no  knowledge  of  such  removal,  they  cannot  be  dis- 
trained upon. 

Bent  Must  be  Due  at  Time  of  Removal. 

294.  In  order  to  follow  the  goods  under  the  act,  rent  must 
be  due  at  the  time  of  the  removal.74 

Bight  to  Collect  Bent  not  Due  in  Case  of  Fraudulent  Bemoval  under 
Act  of  1825. 

295.  By  the  act  of  March  25,  1825,  and  supplement,  in 
Philadelphia,  Pittsburg  and  Allegheny,  if  goods  are  fraud- 
ulently removed  from  the  demised  premises,  with  intent  to 
defraud  the  landlord  of  his  distress,  the  landlord  can  have  his 
rent  apportioned  to  the  time  of  such  removal,  and  follow 
and  take  the  goods  as  a  distress  within  thirty  days  from  such 
removal ;  provided  he  makes  oath  or  affirmation  that  he  verily 
believes  the  goods  were  carried  away  for  the  purpose  of  de- 
frauding him  as  aforesaid ;  And  provided  further,  that  goods 
sold  bona  fide  and  for  a  valuable  consideration  are  excepted. 


72  Grace  v.  Shively,  12  S.  &  R.  216. 

73  Sleeper  v.  Parrish,  7  Phila.  R.  247. 

74  Grace  v.  Shively,  12  S.  &  R.  216. 


CHAPTER  XI. 

LIABILITY   OF  GOODS   OF  TENANT   FO.R  TAXES   OF   LANDLORD. 

SECTION 

296.  Act  of  April  19,  1883,  provid-  on  tenant's  goods  for  taxes 

ing  for  a  right  to  distrain  in  cities  of  the  first  class. 

Act  of  April  19,  1883,  Providing  for  a  Bight  to  Distrain  on  Tenant's 
Goods  for  Taxes  in  Cities  of  the  First  Class. 

296.  "The  receiver  of  taxes  of  the  said  cities  of  the  first 
class,  is  hereby  authorized  and  empowered  to  distrain  and 
levy  upon  and  sell  any  goods,  chattels  or  personal  property 
found  on  any  premises  on  which  the  taxes  are  delinquent,  or 
upon  the  goods,  chattels  or  personal  property  of  the  owner  of 
said  premises,  wherever  the  same  may  be  found,  whether  in 
his  own  possession  or  in  that  of  any  trustee  or  other  person 
for  him,  or  in  the  possession  of  his  executors,  administrators 
or  legal  representatives."  There  is  a  provision  among 
others  to  said  act  reading  as  follows :  "And  provided  further. 
That  when  goods,  chattels  or  personal  property  of  any  tenant 
shall  have  been  levied  upon,  by  virtue  of  the  provisions  of 
this  act,  the  said  receiver  of  taxes  is  hereby  authorized,  em- 
powered and  directed  to  proceed  with  due  diligence,  to  col- 
lect from  said  tenant;  and  when  the  amount  of  taxes,  costs 
and  charges  exceeds  the  amount  of  rent  due,  then  only  the 
amount  of  rent  then  due;  but  the  lien  of  the  levy  shall  remain 
upon  said  goods  during  the  occupancy  of  said  premises  by 
said  tenant,  and  all  rents,  after  accruing,  shall  be  applied  to  the 
extinguishment  of  said  taxes,  until  the  tax,  charges  and  costs 
shall  have  been  fully  paid.  The  amount  collected  by  said  re- 
ceiver of  taxes  shall  be  a  lawful  deduction  from  the  rent  due, 
124 


LIABILITY   OF   GOODS   OF   TENANT   FOR   TAXES.  125 

or  that  may  thereafter  become  due,  and  in  the  event  of  the 
refusal  of  any  landlord  to  allow  of  said  deduction  to  said 
tenant  on  account  of  rent,  and  shall  refuse  to  accept  the  re- 
ceipt of  said  collector  in  lieu  thereof,  then  it  shall  be  the  duty 
of  the  city  solicitor  of  said  cities  of  the  first  class,  to  defend 
the  said  tenant  in  any  action  brought  by  the  said  landlord  or 
his  agent  for  the  recovery  of  said  rent  from  said  tenant;  the 
costs  and  expenses  thereof  to  be  paid  by  said  city;  Provided 
further,  That  in  no  case  shall  any  tenant  or  tenants  be  com- 
pelled to  pay  the  said  tax,  costs  and  charges,  or  any  portion 
thereof,  until  the  rent  shall  have  become  due  and  payable, 
neither  shall  said  receivers  of  taxes  follow  said  tenant's 
goods,  chattels  or  personal  property,  to  any  other  premises 
upon  a  previous  levy,  upon  a  change  of  residence  of  said  ten- 
ants or  a  bona  fide  removal  of  said  goods,  in  the  ordinary 
course  of  business."  1 

i  2  P.  &  L.  Dig.  4530,  §  169;  1883,  P.  L.  9,  §  3.  j 


CHAPTER  XII. 


RIGHTS  TO  CROPS  AND  EMBLEMENTS. 


SECTION 

297.  Definition  of  emblements. 

298.  Growing  grass. 

299.  Things  not  of  annual  growth. 

300.  Right   lost   by    forfeiture    of 

lease. 

301.  Definition  of  waygoing  crop. 

302.  Who  entitled  to  the  crop. 

303.  Straw  included. 

304.  Must  be  fall  grain. 

305.  Crop  may  be  sold  by  tenant. 

306.  The  protection  of  the  crop. 

Definition  of  Emblements. 


SECTION 

307.  Crop  in  case  of  execution. 

308.  Definition  of  a  cropper. 

309.  Landlord     not     entitled     to 

grain     as     rent     until     de- 
livered. 

310.  Under    orphans'    court    sale, 

crops  as  rent  pass  to  pur- 
chaser. 

311.  Crops  payable  as  rent,  grow- 

ing at  the  death  of  landlord, 
go  to  heirs. 


297.  The  vegetable  chattels,  called  emblements,  are  the 
corn  and  other  products  of  the  earth  which  are  produced 
annually,  not  spontaneously,  but  by  labor  and  industry. 

Growing  Grass. 

298.  A  growing  crop  of  grass,  even  if  grown  from  seed, 
and  though  ready  to  be  cut  for  hay,  cannot  be  taken  as  em- 
blements, because  it  is  said  the  improvement  is  not  distin- 
guishable from  what  is  a  natural  product,  although  it  may  be 
increased  by  cultivation. 

Things  not  of  Annual  Growth. 

299.  Such  things  as  are  not  of  annual  growth,  and  do  not 
require  the  labor  of  the  tenant,  but  are  the  permanent  and 
natural  product  of  the  earth,  such  as  trees,  fruit  and  grass, 
are  not  emblements.1 


i  Reiff  v.  Reiff,  64  Pa.  134. 
126 


RIGHTS   TO    CROPS    AND    EMBLEMENTS.  127 

Bight  Lost  by  Forfeiture  of  Lease. 

300.  A  tenant  who  is  ejected  for  breaking  the  terms  of  his 
lease   is   not   entitled   to   emblements.     In   the   month   of 
August,  while  corn  and  potatoes  which  had  been  planted  by 
the   tenant   during   the   term   were   still   growing   and  un- 
gathered,  the  landlord  entered  an  amicable  confession  of 
judgment  in  ejectment  for  conditions  broken,  and  had  the 
tenant  put  out  of  possession ;  and  it  was  held  that  the  articles 
in  question  could  not  be  taken  away  by  the  tenant.2 

Definition  of  Waygoing  Crop. 

301.  Although  a  tenant  for  a  certain  period  may  not  be 
entitled  to  emblements,  yet  by  a  custom  in  Pennsylvania  he 
is  entitled,  like  a  tenant  for  an  uncertain  period,  to  what  is 
known  as  the  waygoing  crop.     The  waygoing  crop  is  the 
crop  of  grain  sown  in  the  fall  to  be  reaped  at  the  next 
harvest.3 

Who  Entitled  to  the  Crop. 

302.  A  tenant  from  year  to  year  is  entitled  to  the  waygoing 
crop.4     This  custom  may  be  controlled  by  an  express  pro- 
vision in  the  lease.5 

Straw  Included. 

303.  The  straw  is  included.6 

Must  be  Fall  Grain. 

304.  The  tenant  cannot  sow  the  land  with  spring  grain, 
and  cut  it  after  the  term  is  out.7 

2  Hunter  v.  Jones,  2  Brewster's  Rep.  370. 

3  Demi  v.  Bossier,  I  P.  &  W.  224. 

4  Clark  v.  Harvey,  54  Pa.  142. 

5  Craig  v.  Dale,  i  W.  &  S.  509. 

6  Craig  v.  Dale,  i  W.  &  S.  509. 

7  Demi  v.  Bossier,  I  P.  &  W.  224. 


128  LANDLORD  AND  TENANT. 

Crop  May  be  Sold  by  Tenant. 

305.  A  tenant  may  dispose  of  his  waygoing  crop  as  he  may 
of  an  article  of  personal  property.8 

The  Protection  of  the  Crop. 

306.  The  landlord  or  any  other  person  who  injures  the 
waygoing  crop  can  be  sued  by  the  tenant  for  damages.9     A 
trespass  by  the  landlord  on  the  waygoing  crop  cannot  be 
justified  by  a  breach  of  the  tenant's  contract  or  bad  hus- 
bandry.    The  redress  must  be  by  suit,  and  not  by  confisca- 
tion of  the  tenant's  rights.10 

Crop  in  Case  of  Execution. 

307.  A  lessee  of  land  encumbered  with  a  judgment  prior  to 
the  lease  under  which  the  premises  are  levied  upon  and  sold, 
is  entitled  to  the  waygoing  crops  sown  by  him  prior  to  the 
levy  and  condemnation  in  preference  to  the  sheriff's  vendee.11 

Definition  of  a  Cropper. 

308.  If  one  be  hired  to  work  land,  receiving  for  his  com- 
pensation part  of  the  produce,  he  is  a  cropper,  and  not  a  ten- 
ant.    He  has  no  interest  in  the  land,  but  receives  his  share 
as  the  price  of  his  labor.      The  possession  is  still  in  the 
owner.12 

Landlord  Not  Entitled  to  Grain  as  Bent  until  Delivered. 

309.  Where  the  rent  of  a  farm  is  payable  in  a  share  of  grain 
raised  on  it,  division  and  delivery  are  essential  to  vest  the 
title  to  the  grain  in  the  landlord. 

"Under  Orphans'  Court  Sale,  Crops  as  Bent  Pass  to  Purchaser. 

310.  By  an  orphans'  court  sale  of  the  property,  the  right 

8  Shaw  v.  Bowman,  91  Pa.  414. 

9  Forsythe  v.  Price,  8  Watts,  282. 

10  Clark  v.  Harvey,  54  Pa.  142.  11  Bittinger  v.  Baker,  29  Pa.  66. 

12  Adams  v.  McKesson's  Ex.,  53  Pa.  81. 


RIGHTS    TO    CROPS    AND    EMBLEMENTS.  129 

to  a  share  of  the  growing  crops  reserved  as  rent  passes  to 
the  purchaser.18 


311.  A  crop  was  growing  at  the  death  of  the  intestate;  it 
was  harvested  and  divided  afterwards,  the  tenant  taking  his 
part  and  delivering  to  the  landlord  his  share.  It  was  held, 
as  a  rent  payable  in  kind,  it  passed  with  the  inheritance,  and 
belonged  to  the  heirs,  rather  than  the  administrator.14 

13  Burns  v.  Cooper,  31  Pa.  426. 

14  McDowell  v.   Adams,  45   Pa.   430;   Waugh's   Exrs.   v.   Waugh,   84 
Pa.  350. 


CHAPTER  XIII. 

POWER  OF  TENANT  TO  BIND  OWNER'S  PROPERTY  FOR 
MECHANICS'  LIENS. 

SECTION  SECTION 

312.  In  what  cases  properties  are  quiring  written  consent   of 

bound.  landlord  for  tenant  to  bind 

313.  Act    of    May    18,    1887,    re-  premises  for  repairs,  etc. 

In  what  Cases  Properties  are  Bound. 

312.  It  has  been  held  that  a  lessee  under  an  improvement 
lease,  who  has  contracted  with  his  lessor  to  put  up  a  building 
on  the  land,  may,  by  his  contract  with  a  mechanic  and 
materialman,  bind  the  estate  of  the  lessor.1  But  the  pres- 
ence of  an  express  covenant  by  the  lessee  to  build  is  not  that 
which  distinguishes  a  building  contract  from  an  improvement 
lease,  where  the  work  is  to  be  done  by  the  tenant  and  his 
servants.  There  was  no  express  covenant  to  build,  but  the 
amount  of  rent  the  lessee  was  to  pay  was  directly  affected  by 
his  omission  to  build,  or  his  actual  building.2  Where  a  ten- 
ant contracts  with  a  landlord  to  build,  for  compensation  to  be 
made  by  the  landlord,  either  in  money  or  the  occupation  and 
use  of  the  premises  he  is  as  an  ordinary  contractor  to  build. 
He  is  the  landlord's  agent,  holding  possession  for  him,  build- 
ing for  him  at  ultimate  cost;  and  the  building  is  liable  to  lien 
as  in  all  other  cases  of  building  by  contract.  Occasionally 
such  contracts  have  been  inadvertently  called  improvement 
leases,  but  they  are  not  in  the  ordinary  meaning  of  the  term. 
Improvement  leases  do  not  ordinarily  contemplate  the  pur- 

1  Reed  v.  Kenney,  4  W.  N.  C.  450. 

2  Barclay  v.  Wainwright,  86  Pa.  191. 

130 


POWER   OF   TENANT   TO   BIND   PROPERTY.  131 

chase  of  material  for  building  and  the  employment  of  me- 
chanics, but  simply  the  labor  of  the  tenant  and  his  servants. 
A  permission  or  license  to  build,  without  a  duty  on  the  tenant 
to  do  so,  is  not  sufficient  to  subject  a  property  to  a  lien.  If 
the  building  is  erected  with  the  landlord's  consent,  and  at  his 
ultimate  expense,  a  lien  may  be  filed.3  The  mechanics'  lien 
laws  were  originally  intended  to  apply  to  cases  of  the  erection 
of  new  buildings,  but  by  the  act  of  August  I,  1868,  these  laws 
were  extended  in  Philadelphia  to  claims  for  the  repair,  altera- 
tion or  addition  to  any  house  or  building,  when  the  same  is 
for  not  less  than  fifty  dollars.  It  is  provided,  however,  that 
such  extension  will  not  apply  where  the  repairs,  alterations 
or  additions  are  done  by  a  lessee  or  tenant,  without  the  writ- 
ten consent  of  the  owner  or  his  agent.  The  lien  dates  from 
the  time  of  the  filing  of  the  claim,  and  until  the  lien  is  filed 
the  owner  may  convey  the  property  clear  of  the  lien. 
Whether  the  insertion  of  a  clause  in  a  lease,  authorizing  the 
making  of  alterations  and  improvements  by  the  lessee,  con- 
stitutes such  a  written  consent  on  the  part  of  the  lessor  as 
authorizes  the  filing  of  a  lien  under  said  act,  depends  upon 
the  question  whether  the  cost  of  such  alterations  or  improve- 
ments is  to  be  borne  by  the  lessor  or  the  lessee.  If  by  the 
former,  the  consent  is  sufficient  to  authorize  the  filing  of  such 
lien;  if  by  the  latter  it  is  not.  A  tenant  agreed  to  make  re- 
pairs, to  make  no  alterations  or  improvements  without  the 
lessor's  consent,  and  further  to  leave  all  alterations  at  the  ex- 
piration of  the  term,  for  the  lessor's  benefit.  It  was  held 
that  the  terms  of  the  lease  indicated  no  intention  that  the  ex- 
pense of  the  repairs  was  to  be  borne  by  the  lessor,  and  that 
therefore  a  lien  could  not  be  filed  under  the  act  of  1868.* 
In  case  a  landlord  makes  an  agreement  with  his  tenant  as  to 
the  erection  of  buildings  and  improvements,  care  should  be 
taken  not  to  subject  the  estate  of  the  lessor  to  mechanics' 
liens.  The  agreement  should  be  carefully  written  under  the 

3  Hall  v.  Parker,  94  Pa.  109.  4  Boteler  v .  Espen,  99  Pa.  313. 


132  LANDLORD  AND  TENANT. 

supervision  of  counsel  acquainted  with  the  authorities  upon 
the  nice  distinctions  the  courts  have  made. 

Act  of  May  18,  1887,  Requiring  Written  Consent  of  Landlord  for 
Tenant  to  Bind  Premises  for  Repairs,  etc. 

313.  By  this  act  the  property  of  the  landlord  will  not  be 
liable  to  liens  for  repairs,  alterations  or  additions  where  the 
same  has  been  altered  by  the  tenant  without  the  written  con- 
sent of  the  owner  or  his  agent,  and  notice  must  be  given  to 
the  owner  or  his  agent  at  the  time  of  furnishing  the  materials 
or  performing  the  work  of  an  intention  to  file  a  lien. 


CHAPTER  XIV. 

INSURANCE   BY   TENANTS. 

SECTION 

314.  Such  insurance  distinguished 
from  other  insurance. 

Such  Insurance  Distinguished  from  Other  Insurance.  v 

314.  A  leasehold  interest  in  buildings  is  insurable.  A  pro- 
vision that  the  policy  shall  become  void  "if  the  assured  is  not 
the  sole  and  unconditional  owner  ©f  the  property,  or  if  the 
building  stands  on  ground  not  owned  in  fee  simple  by  the 
assured,  or  if  the  interest  of  the  assured  is  not  truly  stated 
in  the  policy"  is  not  applicable  to  an  insurance  of  such  an 
interest.  A  policy  of  insurance,  like  any  other  contract,  is 
to  be  read  in  the  light  of  the  circumstances  that  surround  it.1 

i  Tool  v.  Ins.  Co.,  25  W.  N.  C.  370. 


133 


CHAPTER  XV.  ! 

EVICTION. 

SECTION  SECTION 

315.  Eviction    in    part    does    not  319.  Landlord  using  a  way. 

suspend     the     whole     rent  320.  Operation     against     current 

when  tenant  remains.  rent. 

316.  Landlord    taking    possession  321.  Eviction  by  an  injunction. 

of  ruins  after  a  fire.  322.  No  eviction  by  conduct  not 

317.  Physical  expulsion  not  neces-  depriving  tenant  of  the  use 

sary.  of  property. 

318.  Where   tenant   takes   posses-  323.  Waiver  of  eviction  by  paying 

sion  in  case  of  tenant's  de-  rent, 

sertion. 

Eviction  in  Part  does  not  Suspend  the  Whole  Bent  when  Tenant 
Remains. 

315.  An  eviction  of  a  tenant  from  a  portion  of  the  de- 
mised premises,  when  the  tenant  continues  in  possession  of 
the  remaining  part,  using  and  enjoying  it,  does  not  work  a 
suspension  of  all  subsequent  rent;  and  the  tenant  is  liable  to 
his  landlord,  in  an  action  for  use  and  occupation,  for  such 
portion  of  the  rent  as  the  value  of  the  part  retained  bears  to 
the  whole.     If  a  tenant  be  evicted  from  a  part  of  the  demised 
premises,   he  may  remove  from  the  residue,   and  thereby 
wholly  relieve  himself  from  the  payment  of  future  rent.1 

Landlord  Taking  Possession  of  Ruins  After  a  Fire. 

316.  If  the  landlord  takes  possession  of  the  ruins  of  his 
premises  destroyed  by  fire,  for  the  purpose  of  rebuilding, 
without  the  assent  of  his  tenant,  it  is  an  eviction.     If  with  his 

I  Seabrook  v.  Moyer,  88  Pa.  417. 
134 


EVICTION.  135 

assent,  it  is  a  rescission  of  the  lease  and,  in  either  case,  rent 
will  be  suspended.2 

Physical  Expulsion  Not  Necessary. 

317.  The  modern  doctrine  as  to  what  constitutes  an  evic- 
tion, is  that  actual  physical  expulsion  is  not  necessary,  but 
any  interference  with  the  tenant's  beneficial  enjoyment  of  the 
demised  premises  will  amount  to  an  eviction  at  law;  and  it 
has  been  held  that  a  landlord's  refusal  to  allow  an  under- 
tenant to  enter  the  premises,  under  threats  of  suit,  whereby 
the  tenant  is  deprived  of  the  underletting,  is  such  an  inter- 
ruption of  the  latter's  right  as  amounts  to  an  eviction.3     If 
the  landlord  claims,  and  uses,  certain  privileges  upon  the  de- 
mised premises  against  the  tenant's  consent,  he  must  show  a 
reservation  of  them,  or  the  rent  is  suspended.4 

Where  Landlord  Takes  Possession  in  Case  of  Tenant's  Desertion. 

318.  C.  rented  a  tavern-house  to  S.  for  one  year  from  April 
i,  1868.     In  January,  1869,  a  constable  levied  on  the  goods 
of  S.  for  taxes.     Before  the  sale,  S.  left  the  premises;  the  con- 
stable left  the  key  with  C.     On  the  day  after  the  sale  there 
was  a  bill  "To  let"  put  upon  the  premises.     In  1869  a  new 
tenant  leased  from  C.,  who  had  the  key.     After  S.  left  and  be- 
fore the  expiration  of  the  term,  C.  made  some  repairs  to  the 
bar-room.      The  claim  was  for  rent  from  December,  1868, 
until  April  i,  1869.     It  was  held  that  taking  care  of  the  key, 
and  repairing  after  the  tenant  had  voluntarily  left,  was  no 
eviction.     He  would  have  been  entitled  to  enter  if  he  had  re- 
turned, but  he  did  not  return.     He  was  neither  put  out  nor 
sold  out  by  the  plaintiff.5     A.  demised  certain  premises  to  B., 
for  business  purposes,  for  a  certain  time.     Before  the  lease 
expired  B.  locked  the  premises,  moving  certain  goods,  but 

2,  Magaw  v.  Lambert.  3  Barr.  444;  Hoeveler  v.  Fleming,  91  Pa.  322. 

3  Dorian  v.  Chase,  2  W.  N.  C.  609. 

4  Vaughan  v.  Blanchard,  4  Dall.  124. 

5  Pier  v.  Carr,  69  Pa.  326;  Milling  v.  Becker,  96  Pa.  182. 


136  LANDLORD    AND    TENANT. 

leaving  others.  A.  thereupon  broke  the  lock  of  the  door,  re- 
moved B.'s  signs  and  remaining  goods,  and  used  the  rooms 
for  the  remainder  of  the  term  for  his  own  purposes.  Held, 
that  there  had  been  an  eviction.0 

When  a  tenant  is  evicted  he  is  discharged  from  the  rent 
for  the  time  following,  but  not  for  that  due  before  eviction.7 

Landlord  Using  a  Way. 

319.  A  landlord,  after  he  made  a  lease,  claimed  a  right  of 
passage  through  the  cellar  leased  to  another  cellar  back, 
though    he    had    other    communication    thereto,    and    had 
actually  used  this  privilege  against  the  tenant's  consent.     As 
the  privilege  had  not  been  reserved,  the  rent  was  suspended. 
If  the  lessor  enter  into  part,  the  whole  rent  is  suspended; 
for  the  lessor  cannot  apportion  it  by  a  wrongful  act  of  his 
own.8 

Operation  Against  Current  Bent. 

320.  Eviction  of  the  tenant  by  the  landlord  has  no  opera- 
tion on  rent  already  due;  it  suspends  the  rent  of  the  month, 
quarter,  or  other  portion  of  time  running  on  at  the  time  of 
the  eviction.     The  suspension  of  the  rent  is  intended  as  a 
punishment,  and  operates  in  the  nature  of  a  forfeiture.9 

Eviction  by  an  Injunction. 

321.  When  a  tenant  is  enjoined  by  his  landlord  from  using 
the  demised  premises  by  an  ex  parte  injunction,  there  may  be 
an  eviction.10 

No  Eviction  by  Conduct  not  Depriving  Tenant  of  the  TTse  of  Prop- 
erty. 

322.  When  the  rental  of  a  house  is  to  be  a  sum  certain 
and  the  board  of  the  lessor,  mere  annoyances  by  the  language 

6  Burr  v.  Cattnach,  19  W.  N.  C.  22.  ^  Pier  v.  Carr,  69  Pa.  326. 

8  Vaughan  v.  Blanchard,  i  Yeates,  175. 

9  Kessler  v.  McConachy,  i  Rawle,  435. 
JO  Pfund  v.  Herlinger,  10  Phila.  13. 


EVICTION.  137 

and  general  conduct  of  the  lessor  do  not  amount  to  an  evic- 
tion, unless  they  are  of  such  a  character  as  to  prevent  the 
tenant  from  enjoying  the  house  to  its  full  capacity.11 

Waiver  of  Eviction  by  Paying  Kent. 

323.  Where  a  tenant,  after  eviction  from  a  part  of  the  de- 
mised property  continues  to  pay  rent  without  setting  up  the 
eviction  as  a  defence,  he  waives  his  rights,  and  his  subsequent 
holding  over,  not  only  after  the  eviction  but  after  the  expira- 
tion of  the  term  in  which  it  occurred,  is  under  a  new  or  im- 
plied agreement  to  pay  at  the  same  rate  for  the  use  and  occu- 
pation of  so  much  of  the  demised  property  as  remained  in 
his  possession  after  the  eviction.12 

11  Ewing  v.  Cottman,  43  W.  N.  C.  525. 

12  Ward's  Est.,  22  Pa.  C.  C.  R.  284. 


f 


CHAPTER  XVI. 

SURRENDER. 


324.  Parol  surrender  of  lease  for           329.  Surrender  by  a  tenant  does 

more  than  three  years.  not  extinguish  the  term  of  a 

325.  Surrender  must  be  accepted.  sub-tenant. 

326.  Evidence  of  acceptance.  330.  Effect  of  silence  of  landlord 

327.  Surrender  to  agent.  upon  a  surrender. 

328.  Effect    of    surrender    on  re- 

quest. 

Parol  Surrender  of  Lease  for  More  than  Three  Years 

324.  The  fact  that  a  lease  is  for  a  longer  period  than  three 
years  does  not  prevent  a  rescission  thereof  by  parol,  when 
accompanied  by  a  surrender  of  the  lease  and  premises  by  the 
tenant  to  the  landlord,  and  the  acceptance  thereof  by  the 
latter.1 

Surrender  Must  be  Accepted. 

325.  A  tenant  surrendered  his  term  to  his  landlord,  and 
paid  him  the  rent  in  full  to  that  time ;  whereupon  the  landlord 
immediately  took  possession,  and  proceeded  to  repair  the 
house  by  building  a  new  bath-room,  a  new  porch,  putting  in 
a  new  range,  and  making  general  repairs  such  as  could  not 
have  been  made  while  the  house  was  occupied  by  a  tenant. 
Judgment  was  obtained  against  the  tenant,  because  his  affi- 
davit of  defence  did  not  state  that  a  surrender  of  the  lease 
was  accepted  by  the  landlord;  and  it  was  held  that  taking  pos- 
session, repairing,  and  advertising  the  house  for  rent  were 

I  Auer  v.  Penn,  99  Pa.  370. 
138 


SURRENDER.  139 

all  acts  in  the  interest  and  for  the  benefit  of  the  tenant,  and 
did  not  discharge  him  from  his  covenant  to  pay  the  rent.2 

Evidence  of  Acceptance. 

326.  Taking  care  of  the  key,  cleaning  and  repairing  by  the 
landlord  would  not  be  conclusive  evidence  of  the  landlord's 
acceptance  of  a  surrender.3 

Surrender  to  Agent. 

327.  In  an  action  to  recover  rent  reserved  under  a  written 
lease,  an  affidavit  of  defence  which  alleges  that  the  defendant 
lessee  surrendered  possession  to  A.  B.,  the  agent  for  the 
plaintiff,  and  that  possession  thereof  was  accepted  by  him,  is 
a  good  affidavit  and  sufficient  to  carry  the  case  to  a  jury.4 
It  was  held  that  agents  for  managing  real  estate  can  accept 
surrenders.5     When  a  tenant  abandons  leased  premises  with 
notice  to  the  agent  of  the  lessor,  who  had  collected  rent  for 
the  premises,  he  will  not  be  relieved  from  liability  under  the 
lease  unless  it  is  shown  that  the  agent  has  authority  to  accept 
a  surrender,  or  unless  the  lessor  ratify  his  act.6 

Effect  of  Surrender  on  Bequest. 

328.  A  surrender,  with  an  acceptance  of  the  keys,  is  not 
necessarily  a  surrender  of  the  term.     But  where  there  is  a 
precedent  request  by  the  landlord  for  the  keys,  his  accept- 
ance of  them  is  an  acceptance  of  the  term.7 

Surrender  by  a  Tenant  does  not  Extinguish  the  Term  of  a  Sub- 
Tenant. 

329.  A  tenant  after  sub-letting  a  part  of  the  demised 
premises,  assigned  his  term  to  a  stranger.     Three  days  later, 

2  Breuckmann  v.  Twibill,  89  Pa.  58;  Lane  v.  Nelson,  167  Pa.  602. 

3  Milling  v.  Becker,  96  Pa.  182. 

4  De  Morat  v.  Falkenhagen,  148  Pa.  393. 

5  Weightman  v.  Harley.  20  W.  N.  C.  470. 

6  Murphy  v.  Losch,  148  Pa.  171. 

7  Reaney  v.  Fannessy,  14  W.  N.  C.  91. 


140  LANDLORD  AND  TENANT. 

the  assignee  surrendered  the  lease  to  the  landlord,  who  im- 
mediately granted  him  a  new  lease  for  a  longer  term.  This 
arrangement  was  made  without  notice  to,  and  in  disregard 
of,  the  known  rights  of  the  sub-tenant.  Held,  such  sur- 
render and  new  demise  did  not  extinguish  the  term  of  the 
sub-tenant:  he  was  entitled  to  hold  thereafter,  not  under  or  in 
subordination  to  the  new  lease,  but  in  hostility  to  it;  and  his 
goods  could  not  be  distrained  by  the  landlord  for  rent  due 
from  the  assignee  on  the  new  lease. 

Nor  did  the  landlord  thereafter  sustain  any  relation  to  the 
sub-tenant  out  of  which  the  right  to  distrain  upon  the  latter  s 
goods,  for  rent  in  arrear  on  the  sub-lease,  could  arise;  if  such 
right  subsisted  in  the  landlord,  after  the  surrender,  it  passed 
out  of  him  by  virtue  of  the  new  lease  which  he  granted  to  the 
assignee.8 

Effect  of  Silence  of  Landlord  upon  a  Surrender. 

330.  In  a  suit  for  rent  a  tenant  paid  all  the  rent  due  by  him 
at  the  time  of  his  removal,  to  the  agent  of  the  landlord;  and 
handed  to  him  the  keys  of  the  premises,  and  surrendered 
possession  thereof  to  him,  which  he  accepted  without  com- 
ment. The  silence  of  the  agent  was  considered  to  be  an  ac- 
ceptance of  the  surrender,  because  he  ought  to  have  declared 
his  intention  to  hold  the  tenant  responsible  for  future  rent, 
if  that  was  his  purpose.  Silence  is  acquiescence  in  such 
cases.9 

8  Hessel  v.  Johnson,  142  Pa.  8. 

9  Weightman  v.  Harley.  20  W.  N.  C.  470. 


CHAPTER  XVII. 

FORCIBLE  ENTRY  AND  DETAINER. 

SECTION  SECTION 

331.  Act  of  assembly  relating  to  334.  Tenant  holder-over  not  liable 

same.  for  forcible  detainer. 

332.  Must    be    a    breach    of    the  335.  To   constitute   forcible   entry 

peace.  or   detainer  there  must  be 

333.  Forcible  detainer.  violence. 

Act  of  Assembly  Belating  to  Same. 

331.  By  the  act  of  assembly  of  March  31,  1860,  the  pro- 
visions as  to  forcible  entry  and  detainer  are  as  follows : — 

"If  any  person  shall,  with  violence  and  a  strong  hand, 
enter  upon  or  into  any  lands  or  buildings,  either  by  breaking 
open  doors,  windows  or  other  parts  of  the  house,  or  by  any 
kind  of  violence  or  other  circumstances  of  terror,  or  if  any 
person,  after  entering  peaceably,  shall  turn  out  by  force  or 
by  threats,  or  menacing  conduct,  the  party  in  possession, 
every  person  so  offending  shall  be  guilty  of  a  forcible  entry, 
and  on  conviction,  shall  be  sentenced  to  pay  a  fine  not  ex- 
ceeding $500  or  to  undergo  an  imprisonment  not  ex- 
ceeding one  year,  or  both,  or  either,  at  the  discretion  of  the 
Court,  and  to  make  restitution  of  the  lands  and  tenements 
entered  as  aforesaid. 

"If  any  person  shall,  by  force  and  with  a  strong  hand,  or 
by  menaces  or  threats,  unlawfully  hold  and  keep  the  posses- 
sion of  any  lands  or  tenements,  whether  the  possession  of  the 
same  were  obtained  peaceably  or  otherwise,  such  person 
shall  be  guilty  of  forcible  detainer,  and  upon  conviction 
thereof,  shall  be  sentenced  to  pay  a  fine  not  exceeding 
$500,  or  to  undergo  an  imprisonment  not  exceeding  one 

141 


142  LANDLORD  AND  TENANT. 

year,  or  both,  or  either,  at  the  discretion  of  the  court, 
and  to  make  restitution  of  the  lands  and  tenements  unlawfully 
detained  as  aforesaid :  Provided,  That  no  person  shall  be 
guilty  of  forcible  detainer,  if  such  person,  by  himself,  or  by 
those  under  whom  he  claims,  has  been  in  peaceable  possession 
for  three  years  next  immediately  preceding  such  alleged 
forcible  detention."  l 

Must  be  a  Breach  of  the  Peace. 

332.  These  laws  have  an  important  place  in  considering 
the  rights  and  remedies  of  landlords  and  tenants. 

"The  general  common-law  principle  is,  that  though  the 
mere  breaking  and  entering  the  house  of  another  is  not  a 
misdemeanor;  yet  if  that  entry  is  attended  by  circumstances 
constituting  a  breach  of  the  peace,  it  will  become  a  misde- 
meanor." *  * 

.  "A  mere  refusal  to  deliver  possession  when  demanded  will 
not  warrant  the  process  for  forcible  entry  and  detainer;  but 
the  possession  must  be  attended  with  such  circumstances  as 
might  excite  terror  in  the  owner,  and  prevent  him  from  claim- 
ing his  rights;  such  as  apparent  violence  offered  in  deed  or 
word  to  the  person,  having  unusual  offensive  weapons,  or 
being  attended  by  a  multitude  of  people."  2 

"The  force  must  exceed  a  bare  trespass."  "An  entry  by 
breaking  the  doors  or  windows,  etc.,  whether  any  person  be 
in  the  house  or  not,  especially  if  it  be  a  dwelling-house,  is  a 
forcible  entry  within  the  statute."  3 

A  landlord  has  no  right  to  expel  even  a  tenant  at  will  by 
force,  and  he  cannot  enter  with  a  strong  hand  to  disposses  a 
tenant  with  force  after  the  expiration  of  the  term ;  he  cannot 
assert  his  title  with  violence.4 

1  P.  L.  Dig.  1203;  P.  L.  382,  §§21,  22. 

i*  Wharton's  Criminal  Law,  §  2014. 

2  Wharton's  Criminal  Law,  §  2015. 

3  Wharton's   Criminal    Law,  §2034;    I   Wharton's   Precedents  of  In- 
dictments, 435,  436;  Com.  v.  Rees,  2  Brewster,  564. 

4  Wharton's  Criminal  Law,  §  2038. 


FORCIBLE   ENTRY    AND    DETAINER.  143 

The  words  "with  strong  hand"  mean  something  more  than 
a  common  trespass,  viz. :  the  degree  of  violence  amounting 
to  a  breach  of  the  peace.  A  mere  entry  by  an  open  door  or 
window,  or  with  a  key,  however  procured,  or  by  trick  and 
contrivance  will  not  suffice,  nor  an  entry  to  which  the  posses- 
sor is  induced  by  threats  of  destroying  his  cattle  or  goods.5 

Forcible  Detainer. 

333.  The  same  circumstances  of  violence  or  terror  which 
make  any  entry  forcible  will  make  a  detainer  forcible  also.    It 
was  held  in  England  that  the  offense  may  be  committed  by  a 
lessee  who  forcibly  maintains  possession  when  his  term  has 
expired.6 

Prosecutors  obtained  a  lease,  and  upon  attempting  to  take 
possession  were  opposed  by  defendants,  who  closed  and  fast- 
ened the  gate,  and  kept  them  out  by  main  force.  It  was  held 
that  as  the  prosecutors,  although  they  never  had  possession, 
had  the  right  of  possession,  the  defendants  were  liable  for  a 
forcible  detainer.7 

It  has  been  held  that  a  person  rightfully  entitled  to  posses- 
sion of  a  stall  could  lawfully  require  the  lessor's  agent  in 
possession  to  leave  the  stall,  and  if  he  should  refuse  he  could 
use  such  reasonabe  force  as  would  compel  him  to  withdraw 
from  it;  that  it  did  not  appear  that  any  breach  of  the  peace 
was  committed  beyond  the  defendant's  putting  his  hand  to 
the  collar  of  the  agent's  coat  and  walking  him  away  from  the 
stall;  that  this  was  done  after  the  agent  was  required  to 
leave.8 

Tenant  Holder-Over  not  Liable  for  Forcible  Detainer. 

334.  A  lessee,  permitted  to  hold  over  after  the  expiration 
of  his  term,  is  in  no  sense  a  trespasser  while  he  continues  in 

5  I  Wharton's  Precedents,  437. 

6  Taylor's  Landlord  and  Tenant,  584. 

7  Com.  v.  Wisner,  8  Phila.  612. 

8  Com.  v.  M'Neile,  8  Phila.  438. 


144  LANDLORD  AND  TENANT. 

possession,  but,  on  the  contrary,  he  has  a  clear  right  to  re- 
main upon  the  demised  premises  until  he  is  notified  to  quit.9 

To  Constitute  Forcible  Entry  or  Detainer  there  Must  be  Violence. 

335.  One  who  has  leased  premises  to  another  is  not 
guilty  of  the  crime  of  forcible  detainer  if  he  refuse  to  admit 
the  tenant  to  the  premises.  A  prior  possession  of  the  prem- 
ises by  the  prosecutor  and  an  unlawful  detention  of  them  by 
the  landlord  are  necessary  to  sustain  a  conviction.  The  in- 
dictment must  follow  the  words  of  the  statute  "and  with 
strong  hand."  The  words  vi  et  armis  are  not  a  sufficient  sub- 
stitute. The  same  description  and  degree  of  force  is  neces- 
sary to  constitute  a  forcible  entry  as  forcible  detainer.  A 
prosecution  for  forcible  detainer  is  not  an  appropriate  remedy 
for  the  breach  of  an  agreement  to  give  possession  of  lands 
and  tenements.10 

9  Com.  v.  Knarr,  135  Pa.  35. 
10  Com.  v.  Brown,  28  W.  N.  C.  149. 


CHAPTER  XVIII. 


PROCEEDINGS   TO    RECOVER   POSSESSION    OF    DEMISED    PREM- 
ISES AT  THE  END  OF  THE  TERM  UNDER  THE  ACT  OF 
MARCH  21,   1772. 


SECTION 

336.  Words  of  the  act. 

337.  Who  are  entitled  to  the  bene- 

fit of  the  act. 

338.  Rent  must  be  certain. 

339.  Notice  to  quit. 

340.  Service  of  notice  to"  quit. 

341.  Complaint. 

342.  Venire  to  the  sheriff. 

343.  Service  of  summons. 

344.  Proceedings  before  the  jury. 

345.  Proceedings  when  the  title  is 

disputed. 

"Words  of  the  Act. 


SECTION 

346.  Finding    of    the    jury,    judg- 

ment and  writ  for  posses- 
sion. 

347.  Proper  form  for  the  record. 

348.  Removal  by  certiorari. 

349.  What  can  be  shown  at  hear- 

ing upon  certiorari. 

350.  Appeal      to      the      Supreme 

Court. 

351.  Tenant  may  traverse  the  in- 

quisition   in    an    action    of 
ejectment. 


336.  "Where  any  person  or  persons  in  this  province, 
having  leased  or  demised  any  lands  or  tenements  to 
any  person  or  persons,  for  a  term  of  one  or  more  years,  or 
at  will,  paying  certain  rents,  and  he  or  they,  or  his  or  their 
heirs,  or  assigns,  shall  be  desirous  upon  the  determination  of 
the  lease,  to  have  again  and  repossess  his  or  their  estate  so  de- 
mised, and  for  that  purpose  shall  demand  and  require  his  or 
their  lessee  or  tenant  to  remove  from  and  leave  the  same,  if 
the  lessee  or  tenant  shall  refuse  to  comply  therewith  in  three 
months  after  such  request  to  him  made,  it  shall  and  may  be 
lawful  to  and  for  such  lessor  or  lessors,  his  or  their  heirs  and 
assigns  to  complain  thereof  to  any  two  justices  of  the  city, 
town  or  county,  where  the  demised  premises  are  situate,  and 
10  145 


146  LANDLORD  AND  TENANT. 

upon  due  proof  made  before  the  said  justices,  that  the  said 
lessor  or  lessors  had  been  quietly  and  peaceably  possessed  of 
the  lands  or  tenements  so  demanded  to  be  delivered  up,  that 
he  or  they  demised  the  same  under  certain  rents  to  the  then 
tenant  in  possession,  or  some  person  or  persons  under  whom 
such  tenant  claims  or  came  into  possession,  and  that  the  term 
for  which  the  same  was  demised  is  fully  ended,  that  then  and 
in  such  case  it  shall  and  may  be  lawful  for  the  said  two  justices 
to  whom  complaint  shall  be  made  as  aforesaid,  and  they  are 
hereby  enjoined  and  required  forthwith  to  issue  their  war- 
rant, in  nature  of  a  summons,  directed  to  the  sheriff  of  the 
county,  thereby  commanding  the  sheriff  to  summon  twelve 
substantial  freeholders  to  appear  before  the  said  justices 
within  four  days  next  after  issuing  the  said  summons,  and 
also  to  summon  the  lessee  or  tenant,  or  other  person  claiming 
or  coming  into  possession  under  the  said  lessee  or  tenant,  at 
the  same  time  to  appear  before  them,  the  said  justices  and 
freeholders,  to  show  cause,  if  any  he  has,  why  restitution  of 
the  possession  of  the  demised  premises  should  not  be  forth- 
with made  to  such  lessor  or  lessors,  his  or  their  heirs  or  as- 
signs ;  and  if  upon  hearing  the  parties,  or  in  case  of  the  ten- 
ant's or  other  persons  claiming  or  coming  into  possession 
under  the  said  lessee  or  tenant,  neglect  to  appear  after  be- 
ing summoned  as  aforesaid,  it  shall  appear  to  the  said  jus- 
tices and  freeholders,  that  the  lessor  or  lessors  had  been  pos- 
sessed of  the  lands  or  tenements  in  question,  that  he  or  they 
had  demised  the  same  for  a  term  of  years,  or  at  will  to  the  per- 
son in  possession,  or  some  other  under  whom  he  or  she 
claims  or  came  into  possession  at  a  certain  yearly  or  other 
rent,  and  that  the  term  is  fully  ended,  that  demand  had  been 
made  of  the  lessee  or  other  person  in  possession  as  aforesaid, 
to  leave  the  premises  three  months  before  such  application 
to  the  said  justices,  that  then  and  in  every  such  case  it  shall 
and  may  be  lawful  for  the  said  two  justices  to  make  a  record 
of  such  finding  by  them,  the  said  justices  and  freeholders, 
and  the  said  freeholders  shall  assess  such  damages  as  they 


TO   RECOVER   POSSESSION    OP    DEMISED   PREMISES.          147 

think  right  against  the  tenant  or  other  person  in  possession 
as  aforesaid,  for  the  unjust  detention  of  the  demised  prem- 
ises, for  which  damages  and  reasonable  cost  shall  be  entered 
by  the  said  justices,  which  judgment  shall  be  final  and  con- 
clusive to  the  parties;  and  upon  which  the  said  justices  shall, 
and  they  are  hereby  enjoined  and  required  to  issue  their  war- 
rant under  their  hands  and  seals  directed  to  the  sheriff  of  the 
county,  commanding  him  forthwith  to  deliver  to  the  lessor  or 
lessors,  his  or  their  heirs  or  assigns,  full  possession  of  the  de- 
mised premises  aforesaid,  and  to  levy  the  costs  taxed  by  the 
justices,  and  damages  so  by  the  freeholders  aforesaid  assessed, 
of  the  goods  and  chattels  of  the  lessee  or  tenant,  or  other 
person  in  possession  as  aforesaid,  any  law,  custom  or  usage  to 
the  contrary  notwithstanding." 

Who  are  Entitled  to  the  Benefit  of  the  Act. 

337.  Lessors  who  have  leased  for  one  or  more  years  or  at 
will  to  tenants  paying  certain  rents,  or  their  heirs  or  assigns. 
Where  there  is  a  lease  for  less  than  a  year  the  lessor  may  pro- 
ceed.1 An  owner  of  premises  leased  them  and  gave  notice 
to  the  tenant  to  quit,  he  afterwards  conveyed  the  premises 
and  his  grantee  afterwards  conveyed  them ;  the  last  grantees 
are  assignees  within  the  meaning  of  the  act  and  could  recover 
possession  under  the  act.2 

The  Supreme  Court  defined  the  word  "lessor"  in  the  act  of 
1863  to  include  whoever  may  succeed  to  the  lessor's  title.8 
Devisees  under  wills  are  not  named,  but  it  seems  that  they  are 
assignees  within  the  meaning  of  the  law.  A  devise  in  this 
state  is  a  kind  of  conveyance  or  declaration  of  uses  in  the  life- 
time of  the  testator.  On  this  ground,  before  the  act  of  as- 
sembly to  remedy  this  defect,  a  will  did  not  pass  after 
acquired  property. 

Premises  were  leased,  the  landlord  gave  the  tenant  notice 
to  quit  and  afterwards  conveyed  part  of  the  premises;  the 

1  Shaffer  v.  Sutton,  5  Binn.  228;  Hollis  v.  Burns,  100  Pa.  206. 

2  Duff  v.  Fitzwater,  54  Pa.  224.        3  Glenn  v.  Thompson,  75  Pa.  389. 


148  LANDLORD  AND  TENANT. 

grantee  at  the  end  of  the  term  proceeded  under  the  act  of 
March  21,  1772,  to  recover  possession  of  the  part,  the  lessor 
not  joining  nor  taking  any  steps  to  recover  possession  of  the 
remainder.  Held,  that  the  case  was  within  the  act.  The 
court  remarked,  however,  that  a  landlord  cannot  proceed  for 
part  and  hold  the  tenant  for  the  residue.4 

Bent  Must  be  Certain. 

338.  By  the  terms  of  the  act  this  is  so.     The  rent  of  "tak- 
ing care  of  the  grain  of  the  landlord  on  the  place,  and  keeping 
out  the  cattle"  is  not  certain.5     A  demise  at  will  in  considera- 
tion of  services  to  be  rendered  annually  to  a  religious  society, 
as  for  singerand  organist,  was  held  not  to  be  for  a  certain  rent.6 
The  act  does  not  apply  where  there  is  a  lease  at  will  without  a 
reservation  of  rent.7     The  words  certain  rent  mean  what  is 
ordinarily  understood  by  the  expression,  and  the  act  applies 
only  to  leases  in  which  a  certain  rent  is  clearly  and  dis- 
tinctly reserved,  and  not  to  cases  where  the  rent  reserved  is  so 
uncertain  as  to  require  the  intervention  of  a  jury  to  render  it 
certain.8 

Notice  to  Quit. 

339.  A  notice  to  quit  "at  the  end  of  the  term"  is  sufficient ; 
the  tenant  is  bound  to  take  notice  of  its  expiration.     It  is 
sufficient  to  describe  the  property  as  in  the  lease,  as  the  ten- 
ant will  know  what  property  has  been  rented.9     The  notice 
must  be  positive,  not  in  the  alternative  or  conditional. 

The  notice  must  be  given  by  the  person  interested  in  the 
premises  or  his  agent  properly  appointed.  It  should  be  signed 
by  the  landlord  himself  or  by  some  person  in  his  name  who 
has  been  authorized  by  him,  and  directed  to  the  tenant.  As 
the  tenant  is  to  act  upon  the  notice  at  the  time  it  is  given  to 

4  De  Coursey  v.  Trust  Co.,  81  Pa.  217. 

5  Scott  v.  Fuller,  3  P.  &  W.  55. 

6  Hohly  v.  Society,  2  Pa.  293.  7  Graver  v.  Fehr.  89  Pa.  460. 

8  Davis  v.  Davis,  115  Pa.  261.  9  Duff  v.  Fitzwater,  54  Pa.  224. 


TO    RECOVER    POSSESSION    OF    DEMISED    PREMISES.          149 

him  it  should  be  binding  on  all  parties  concerned.  The 
notice  to  quit  may  be  waived,  but  such  waiver  should  be 
stated  in  all  the  proceedings. 

Where  the  lease  is  for  a  fixed  definite  period  a  notice  be- 
fore the  expiration  of  the  term  is  unnecessary;  if  the  tenant 
do  not  remove,  the  landlord  may,  after  the  expiration,  give 
notice  and  proceed  under  the  act.10  In  case  the  lease  is  for  a 
fixed  certain  term  the  landlord  does  not  have  to  wait  until 
the  end  of  the  term  before  serving  the  notice  to  quit,  he  can 
give  notice  for  possession  at  the  end  of  term  if  he  has  time  to 
give  three  months'  notice  before  them,  but  if  he  has  not  time 
he  can  give  notice  to  quit  after  the  term  and  upon  the 
expiration  of  the  three  months'  notice.  When  the  lease  is 
from  year  to  year  the  notice  must  be  given  three  months  be- 
fore the  expiration  of  the  current  year.11 

Service  of  Notice  to  Quit. 

340.  The  notice  had  better  be  served  on  the  tenant  person- 
ally on  the  demised  premises  if  possible  so  as  to  avoid  all 
questions.     Care  should  be  exercised  in  obtaining  and  pre- 
serving a  proof  of  service  of  notice. 

Complaint. 

341.  If  the  tenant  should  refuse  to  comply  with  the  notice, 
the  landlord  must  make  a  written  complaint,  with  an  affi- 
davit before  two  justices  of  the  peace  of  the  county  where  the 
demised  premises  are,  and  state : 

That  he  was  quietly  and  peaceably  possessed  of  the  demised 
premises  (the  premises  should  be  described,  located  and 
identified,  so  that  the  officer  executing  the  writ  of  possession 
will  know  what  property  he  is  to  take  possession  of). 

That  he  demised  the  same  on  certain  rents  to  the  tenant  in 
possession  or  to  some  person  under  whom  he  claims  or  came 

10  Logan  v.  Herron,  8  S.  &  R.  459. 

11  Boggs  v.  Black,  i   Binn.  332;    Fahnestock  v,   Faustenauer,  5  S.   & 
R.  174-  '.      '  . 


150  LANDLORD  AND  TENANT. 

into  possession.  [The  remarks  concerning  the  complaint 
under  the  act  of  1863,  are  referred  to.] 

That  the  term  for  which  the  same  were  demised  is  fully 
ended. 

That  notice  to  quit  had  been  given  three  months  before 
the  end  of  a  current  year,  in  case  of  a  tenancy  from  year  to 
year;  or  three  months  before  making  the  complaint,  in  case 
of  a  lease  for  a  fixed  period. 

That  the  tenant  has  neglected  or  refused  to  comply  with 
the  notice. 

Venire  to  the  Sheriff. 

342.  Upon  the  proof  being  made,  the  justices  prepare  the 
summons,  directed  to  the  sheriff  of  the  county,  and  thereby 
command  him  to  summon  twelve  substantial  freeholders  to 
appear  before  them  within  four  days  after  issuing  the  sum- 
mons, and  also  to  summon  the  lessee  or  tenant,  or  other  per- 
son claiming  or  coming  into  possession  under  the  tenant,  to 
appear  before  them,  to  show  cause,  if  any  they  have,  why 
restitution  of  the  possession  of  the  demised  premises  should 
not  be  forthwith  made  to  the  lessee  or  his  heirs  or  assigns. 
The  summons  should  particularly  recite  the  complaint. 

Service  of  Summons. 

343.  The  act  does  not  state  how  the  summons  is  to  be  served 
on  the  defendants. 

Leased  premises  were  a  theatre,  and  not  a  dwelling-house, 
nor  did  the  defendant  live  in  it,  but  it  was  occupied  by 
his  agent;  and  the  return  of  the  sheriff  showed  that  he  sum- 
moned the  defendant  to  appear  by  leaving  a  true  and  attested 
copy  of  the  writ  on  the  premises  with  the  agent,  and  making 
known  to  him  the  contents  thereof.  The  court  held  that  the 
object  of  the  law  was,  that  the  service  should  be  made  in  such 
manner  that  the  person  in  actual  possession  should  have  no- 
tice of  the  summons.  The  court  called  attention  to  the  fact 
that,  at  the  time  of  the  passage  of  the  act,  personal  service  of 


TO    RECOVER    POSSESSION    OF    DEMISED    PREMISES.  151 

the  ordinary  summons  was  not  necessary,  and  that  the  sheriff 
might  leave  "notice  in  writing  of  such  summons  at  the  house 
of  the  defendant,  in  the  presence  of  one  or  more  of  his  family 
or  neighbors,  signifying  that  the  defendant  should  be  and  ap- 
pear according  to  the  contents  of  such  summons."  The 
court  said  :  From  the  language  of  the  act,  service  on  the 
demised  premises  upon  the  person  in  possession  seems  to  be 
contemplated ;  that  service  on  an  agent  in  possession  is  suffi- 
cient.12 

Personal  service  on  the  tenant  on  the  premises  or  else- 
where will  probably  be  good  as  a  notice  to  quit  for  non-pay- 
ment of  rent,  under  the  act  of  1830,  will  be  good  served  on 
the  defendant  off  the  demised  premises.13 

Under  the  act  of  1863,  the  summons  must  be  served  upon 
the  defendant  personally  or  at  his  dwelling-house.  If  it  can- 
not be  served  personally,  and  the  defendant  has  no  residence 
in  the  county,  it  may  be  necessary  to  proceed  under  the  act 
of  1772,  by  serving  a  person  in  possession  of  the  demised 
premises  who  holds  possession  under  or  by  the  authority  of 
the  tenant. 

Proceedings  Before  the  Jury. 

344.  Sickness  of  counsel  is  a  ground  for  continuance.14 
When  justices  of  the  peace  do  not  allow  a  reasonable  time  to 
the  tenant  to  procure  his  testimony,  the  court  will  set  aside 
the  proceedings.15  Upon  certiorari,  ground  being  laid  by 
affidavit,  the  court  will  go  into  proof  of  partiality,  corruption 
or  extortion.16 

A  description  of  premises  in  an  inquisition  under  the  act  is 
sufficient,  if  it  is  the  same  as  in  the  lease.  If  the  tenants  knew 
what  to  take  and  enjoy  by  the  description  in  the  lease,  they 
knew  what  to  surrender,  and  if  the  sheriff  has  to  be  called  in, 
he  will  deliver  only  the  premises  which  the  tenants  obtained 

12  Watts  v.  Fox,  64  Pa.  336.         13  Reid  v.  Christy,  2  Phila.  144. 

14  McMullin  v.  Orr,  8  Phila.  342.     15  Stewart  v.  Martin,  I  Yeates,  49. 

16  McMullin  v.  Orr,  8  Phila.  342. 


152  LANDLORD  AND  TENANT. 

under  the  lease.  The  description  in  this  case  held  to  be 
sufficient  was,  "Certain  premises,  stables,  etc.,  with  the  ap- 
purtenances, situate  on  the  north  side  of  Filbert  street  above 
Eighth,  in  the  city  of  Philadelphia."  1T 

Where  the  jurors  cannot  agree  the  justices  may  discharge 
them,  and  issue  a  new  precept  to  the  sheriff  directing  him  to 
summon  a  new  jury.18 

Proceedings  when  the  Title  is  Disputed. 

345.  "If  the  tenant  shall  allege  that  the  title  to  the  premises 
is  disputed  and  claimed  by  some  other  person  whom  he  shall 
name,  in  virtue  of  a  right  or  title  accrued  or  happening  since 
the  commencement  of  the  lease  by  descent,  deed  or  will  of 
the  lessor,  and  if  the  claimant  shall  forthwith,  or  upon  a  sum- 
mons immediately  to  be  issued  by  the  justices,  returnable  in 
six  days  next  following,  before  them  to  appear,  and  if  the 
claimant  on  oath  or  affirmation  to  be  administered  by  the 
justices,  shall  declare  that  he  verily  believes  that  he  is  en- 
titled to  the  premises  in  dispute  and  shall,  with  one  or  more 
sufficient  sureties,  become  bound  by  recognizance  in  the  sum 
of  one  hundred  pounds  to  the  lessor,  his  heirs  and  assigns,  to 
prosecute  his  claim  at  the  next  court  of  common  pleas,  then 
the  justices  shall  forbear  to  give  judgment.     It  being  pro- 
vided, that  if  the  claim  shall  not  be  prosecuted,  the  recog- 
nizance shall  be  forfeited  to  the  use  of  the  lessor,  and  the 
justices  shall  proceed  to  give  judgment  and  possession  to  be 
given  under  the  act  of  I772."19 

Finding  of  the  Jury,  Judgment  and  Writ  for  Possession. 

346.  If  the  jury  shall  find  the  complaint  to  have  been  well 
founded,  the  record  of  their  finding  of  these  facts  is  made  by 
the  two  justices.     In  that  inquisition  all  the  facts  should  be 
specifically  found  and   stated,   and  the  jury  should  assess 
damages  for  the  unjust  detention  of  the  property,  for  which 

17  Duff  v.  Fitzwater,  54  Pa.  224.        18  White  v.  Arthur,  24  Pa.  96. 
19  Act  March  21,  1772. 


TO    RECOVER    POSSESSION    OF    DEMISED    PREMISES.          153 

damages  and  reasonable  costs  judgment  shall  be  entered  by 
the  magistrates. 

Upon  the  finding  of  the  jury  being  entered  of  record  by 
the  magistrates,  it  is  final  and  conclusive,  and  the  magistrates 
issue  a  writ  of  possession,  under  their  hands  and  seals,  di- 
rected to  the  sheriff,  commanding  him  forthwith  to  deliver  to 
the  lessor  full  possession  and  to  levy  the  costs  taxed  and  the 
damages. 

Proper  Form  for  the  Record. 

347.  The    Supreme    Court,    in    sustaining    a    record    by 
Thompson,  C.  J.,  said:    "The  record  here  follows  with  the 
utmost  strictness  the  form  given  in  Binn's  Justice  in  such 
cases,  edition  of  1870,  by  Brightly,  p.  535.      That  form  has 
been  in  use  for  more  than  a  third  of  a  century,  and  is  copied 
from  Graydon,  which  is  much  older.     Hundreds  of  records 
have  been  made  in  accordance  therewith,  and,  so  far  as  I 
know,  it  has  never  been  condemned  by  any  court."  20 

Removal  by  Certiorari. 

348.  Proceedings  may  be  removed  by  certiorari  to  the 
court  of  common  pleas,  but  the  certiorari  will  not  be  a  super- 
sedeas  to  the  execution. 

Not  even  in  the  city  of  Philadelphia,  under  the  act  of 
March  24,  i86s.21 

Neither  an  affidavit  nor  a  bond  is  required  to  support  a 
certiorari  to  the  magistrate  under  the  act  of  March  21,  1772. 
It  is  a  common-law  writ.22 

What  Can  be  Shown  at  Hearing  upon  Certiorari. 

349.  Upon  certiorari  only  the  regularity  of  the  proceed- 
ings, as  it  appears  by  the  record,  can  be  examined.     A  lease 
showed  that  its  termination  depended  upon  a  contingency, 

20  Buchannan  v.  Baxter,  67  Pa.  348. 

21  De  Coursey  v.  Trust  Co.,  81  Pa.  217. 

22  Veditz  v.  Levy,  17  W.  N.  C.  477. 


154  LANDLORD  AND  TENANT. 

but  the  record  did  not  show  it,  and  the  court  could  not  con- 
sider the  terms  of  the  lease  not  part  of  the  record,  and  it 
was  held  to  be  improper  to  allow  depositions  to  be  read  at 
the  hearing.23 

To  establish  fraud  or  want  of  jurisdiction  the  court  may 
hear  facts  by  affidavit:  but  not  to  show  irregularity  which 
would  contradict  the  record.24 

Appeal  to  the  Supreme  Court. 

350.  The  judgment  of  the  court  of  common  pleas  in  pro- 
ceedings by  certiorari  may  be  brought  before  the  Supreme 
Court.    The  jury  before  the  justices  was  intended  to  take  the 
place  of  a  jury  in  court,  but  with  differences.    In  case  the  jury 
should  blunder  as  to  law  or  facts,  or  in  case  the  justices 
should  blunder  in  advising  and  performing  their  parts  of  the 
proceeding  there  will  be  no  remedy  in  the  courts,  provided 
the  forms  conform  to  the  act  of  assembly.     The  remedy  for 
informalities  is  by  certiorari.     By  such  a  proceeding  the  court 
of  common  pleas  can  affirm  or  reverse  the  proceedings  before 
the   justices    for   informalities,    subject    to    review   by    the 
Superior  Court,  but  as  to  the  evidence,  law  and  merits  of  the 
case  the  decision  of  justices  and  their  jury  will  be  final 
and  conclusive.     As  the  warrant  for  possession  follows  im- 
mediately after  the  judgment  the  law  seems  to  be  very  favor- 
able to  landlords.25 

Tenant  May  Traverse  the  Inquisition  in  an  Action  of  Ejectment. 

351.  An  adverse  finding  by  the  jury  may  be  traversed  by 
the  tenant  in  an  action  of  ejectment  to  try  the  title.26 

23  Steamboat  Co.  v.  Hass,  151  Pa.  113. 

24  Wistar  v.  Ollis,  77  Pa.  291. 

25  Clark  v.  Yeat,  4  Binn.  184;  Clark  v.  Patterson,  6  Binn.  128. 

26  Galbraith  v.  Black,  4  S.  &  R.  206. 


CHAPTER  XIX. 


PROCEEDINGS  TO   RECOVER   POSSESSION   AT  THE  END   OF  THE 
LEASE  UNDER  THE  ACT  OF  DECEMBER  14,   1863. 


SECTION 

352.  Words  of  the  act. 
353-  Power  of  justice  of  the  peace 
extended  to  aldermen. 

354.  Act  extended  to  assignees. 

355.  Appeal  will  be  a  supersedeas 

in  Philadelphia. 

356.  Tenancy  to  be  established  by 

parol  or  written  agreement. 

357.  Notice  to  quit. 

358.  Tenant    not    bound    to    give 

notice  to  quit. 

359.  Notice  given  by  assignee  of 

lease. 

360.  Verbal  notice. 

361.  Time  of  giving  notice. 


Words  of  the  Act. 


SECTION 

362.  No  limitation  for  landlord  to 

proceed  on  notice. 

363.  Notice     to      quit     may      be 

waived. 

364.  Service  of  notice  for  posses- 

sion. 

365.  Complaint. 

366.  Summons. 

367.  Service  of  summons. 

368.  Hearing. 

369.  Warrant  for  possession. 

370.  Appeal. 

371.  Judgment. 

372.  Record. 

373.  Certiorari. 

374.  Appeal  to  Superior  Court. 


352.  "Sec.  I. — That  when  any  person,  or  persons,  in  this 
state,  having  leased  or  demised  any  lands,  or  tenements,  to 
any  person,  or  persons,  for  a  term  of  one  or  more  years,  or 
at  will,  shall  be  desirous,  upon  the  determination  of  said 
lease,  to  have  again  and  repossess  such  demised  premises, 
having  given  three  months'  notice  of  such  intention  to  his 
lessee,  or  tenant,  and  said  lessee  or  tenant,  shall  refuse  to 
leave  and  surrender  up  said  premises,  at  the  expiration  of 
said  term,  in  compliance  with  the  terms  of  said  notice,  it  shall 
be  lawful  for  such  lessor,  his  agent,  or  attorney,  to  complain 
thereof,  to  any  justice  of  the  peace,  in  the  city,  borough,  or 
county,  wherein  the  demised  premises  lie,  whose  duty  it  shall 

'155  " 


156  LANDLORD  AND  TENANT. 

be  to  summons  the  defendant  to  appear  at  a  day  fixed,  as  in 
other  civil  actions,  and  upon  due  proof  being  made,  the 
tenant,  having  notice  of  the  time  and  place  of  hearing,  that 
the  said  lessor  was  quietly  and  peaceably  possessed  of  the 
lands,  or  tenements,  so  required  to  be  surrendered  up,  and 
that  he  demised  the  same  to  the  tenant  in  possession,  or  to 
some  other  person,  under  whom  such  tenant  claims,  and  that 
the  term  for  which  the  same  were  demised,  is  fully  ended  and 
that  three  months'  previous  notice  had  been  given  of  his 
desire  to  repossess  the  same,  then,  and  in  that  case,  if  it  shall 
appear  right  and  proper  to  the  said  justice,  he  shall  enter 
judgment  against  the  said  tenant,  that  he  forthwith  give  up 
the  possession  of  the  said  premises  to  the  said  lessor ;  and  that 
said  justice  shall  also  give  judgment  in  favor  of  the  lessor, 
and  against  the  lessee  or  tenant,  for  such  damages  as,  in  his 
opinion,  the  said  lessor  may  have  sustained,  and  for  all  the 
costs  of  the  proceedings;  and  he  shall  forthwith  issue  his 
warrant,  to  any  constable  in  the  county,  commanding  him, 
immediately,  to  deliver  to  the  lessor,  his  agent,  or  attorney, 
full  possession  of  the  said  demised  premises,  and  to  levy  the 
damages  and  costs,  awarded  and  taxed  by  the  said  justice,  of 
the  goods  and  chattels  of  the  lessee,  or  tenant,  or  other  person 
in  possession;  any  law,  custom,  or  usage  to  the  contrary  not- 
withstanding: Provided,  That  the  defendant  may  at  any  time 
within  ten  days  after  the  rendition  of  judgment,  appeal  to  the 
court  of  common  pleas,  in  the  manner  provided  in  the  first 
section  of  an  act  relative  to  landlords  and  tenants,  approved 
April  3,  1830:  And  provided  further,  That  such  appeal  shall 
not  be  a  supersedeas  to  the  warrant  of  possession  aforesaid, 
but  shall  be  tried  in  the  same  manner  as  actions  of  ejectment, 
and  if  the  jury  shall  find  in  favor  of  the  tenant,  they  shall  also 
assess  the  damages  which  he  shall  have  sustained  by  reason 
of  his  removal  from  the  premises;  and  for  the  amount  found 
by  the  jury,  judgment  shall  be  rendered  in  his  favor,  with 
costs  of  suit,  and  that  he  recover  possession  of  the  premises, 
and  he  shall  have  the  necessary  writ  or  writs,  of  execution  to 


PROCEEDINGS   TO   RECOVER   POSSESSION.  157 

enforce  said  judgment :  And  provided  further,  That  the  ten- 
ant may  have  a  writ  of  certiorari  to  remove  the  proceedings 
of  the  justice,  as  in  other  cases."  1 

Power  of  Justice  of  the  Peace  Extended  to  Aldermen. 

353.  The  powers  and  jurisdiction  conferred  upon  justices 
of  the  peace  are  conferred  upon  aldermen,  and  any  one  may 
act  with  like  effect,  as  may  be  done  by  any  justice  of  the 
peace.1  * 

Act  Extended  to  Assignees. 

354.  Act  applies  to  cases  in  which  the  owner  or  owners 
have  acquired  title  by  descent  or  purchase  from  the  original 
lessor  or  lessors.2 

Appeal  will  be  a  Supersedeas  in  Philadelphia. 

355.  That  part  of  the  act  which  provides  that  an  appeal 
shall  not  be  a  supersedeas  as  to  a  warrant  for  possession  was 
repealed  as  to  the  county  of  Philadelphia.3 

Tenancy  to  be  Established  by  Parol  or  Written  Agreement. 

356.  The  proceedings  shall  be  founded  upon  a  written 
lease  or  contract  in  writing,  or  on  a  parol  agreement,  in  and 
by  which  the  relation  of  landlord  and  tenant  is  established 
between  the  parties,  and  a  certain  rent  is  therein  reserved.4 

Notice  to  Quit. 

357.  It  must  be  given  three  months  before  the  end  of  the 
term,  and  must  be  to  quit  at  the  termination  of  the  lease,  not 
some  other  date. 

If  a  tenant  is  bound  to  give  possession  at  a  fixed  period, 
the  landlord  may,  without  notice  to  him,  set  him  out  of  pos- 
session, if  it  can  be  clone  without  breach  of  the  peace,  or 
he  may  bring  ejectment  if  the  tenant  will  not  go  out,  and  he 

i  i  P.  &  L.  Dig.  2650,  §28;  1863,  P.  L.  (1864)  1125. 

I*  Act  of  April  u,  1866.  2  Act  of  February  20,  1867. 

3  Act  of  June  25,  1869.  4  Act  of  March  6,  1872. 


158  LANDLORD    AND    TENANT. 

may  sue  him  upon  his  covenant  for  damages.  These  were 
the  common-law  remedies  of  the  landlord.  As  an  additional 
remedy  the  act  of  1772  was  passed,  requiring  three  months' 
notice  for  possession  "before  the  application  to  the  justices." 
The  act  of  1863  was  an  additional  remedy,  not  repealing  the 
act  of  1772.  The  act  of  1863  requires  the  notice  to  be  given 
"three  months  before  the  expiration  of  the  term.''  Where 
the  lease  is  from  year  to  year  or  for  any  indefinite  period, 
notice  is  necessary  to  terminate  the  demise.5 

Where  the  lease  is  from  year  to  year,  or  for  any  indefinite 
period,  notice  is  necessary  to  terminate  the  demise  and  this, 
under  the  act  of  1863,  must  be  given  three  months  before  the 
expiration  of  the  term.6 

The  notice  must  be  to  quit  upon  the  determination  of  the 
lease,  and  not  upon  some  other  date.7 

In  giving  notice  to  quit  on  a  certain  date  it  will  be  well  to 
require  possession  at  the  expiration  of  the  lease,  to  wit,  on  a 
certain  date.  Notice  to  give  possession  "at  the  end  of  the 
said  term  of  one  year"  is  sufficient.8 

A  landlord  cannot  without  having  given  three  months' 
notice,  proceed  under  the  act  to  dispossess  a  tenant  holding 
from  month  to  month,  although  the  lease  contains  the  ten- 
ant's agreement  to  surrender  possession  on  receiving  thirty 
days'  notice.9 

Tenant  Not  Bound  to  Give  Notice  to  Quit. 

358.  A  tenant  is  not  bound  to  give  his  landlord  any  notice 
that  he  intends  to  remove,  unless  the  lease  requires  it.10 

Notice  Given  by  Assignee  of  Lessor. 

359.  When  the  assignee  of  a  lessor  gives  notice  to  quit,  or 
a  note  requiring  the  date  of  the  commencement  of  a  tenancy, 

5  Rich  v.  Keyser,  54  Pa.  86.        6  Dumn  v.  Rothermel,  112  Pa.  272. 

7  Borough  v.  Walters,  29  W.  N.  C.  483. 

8  Snyder  v.  Carfrey,  54  Pa.  90.        9  Gault  v.  Neal,  6  Phila.  61. 

10  Cook  v.  Neilson,  10  Barr,  41 ;  Brown  v.  Brightly,  14  W.  N.  C.  497. 


PROCEEDINGS   TO    RECOVER    POSSESSION.  159 

he  must  show  on  the  face  of  the  paper  his  authority  for  giving 
the  notice. 

He  must  sign  as  assignee  of  the  lessor  or  recite  the  assign- 
ment in  the  notice.  If,  however,  the  tenant  knew  or  was  told 
of  the  assignment  at  'the  time  of  the  notice,  it  would  be 
good.11 

Verbal  Notice. 

360.  A  verbal  notice  to  quit  is  sufficient;  and  if  it  be  writ- 
ten, a  mistake  may  be  corrected  at  the  time  of  service.12 

Time  of  Giving  Notice. 

361.  Property  was  leased  for  one  year  from  March  25, 
1868.     On  December  25,  1868,  notice  was  given,  under  the 
act  of  1863,  to  quit  at  the  end  of  the  term.     The  lease  com- 
menced on  March  25,  and  the  last  day  of  the  lease  was  March 
24,   1869.     March  24  counted  a  whole  day  when  its  last 
moment  had  arrived.     Counting  December  25,  on  which  the 
notice  was  given,  and  March  24,  when  the  lease  expired,  there 
was  three  months'  notice  before  the  end  of  the  term.     De- 
cember 25  is  to  be  counted,  for  the  law  takes  no  notice  of  the 
fraction  of  a  day  in  the  computation  of  time.     Service  on 
that  day  was  one  day's  notice.     It  was  held  that  the  notice 
was  measured  by  the  terms  of  the  act  itself.13 

No  Limitation  for  Landlord  to  Proceed  on  Notice. 

362.  After  a  notice  to  quit  is  given,  there  is  no  limitation 
as  to  the  time  when  the  landlord  may  commence  proceedings 
for  possession.     The  right  runs  on,  unless  it  is  waived.14 

Notice  to  Quit  may  be  Waived. 

363.  A  three  months'  notice  to  quit  under  the  act  of  1772 

11  Donaldson  v.  Likens,  2  Brewster,  486. 

12  Tham  v.  Hamberg,  2  Brewster,  528;  Koenig  v.  Bauer,  I  Brewster, 

304. 

13  Duffy  v.  Ogden,  64  Pa.  240. 

14  Boggs  v.  Black,  i  Binney,  332. 


160  LANDLORD  AND  TENANT. 

may  be  waived  in  the  lease,  as  when  the  tenant  agrees  to  quit 
"without  further  notice."  15 

A  lease  was  made  to  James  Glenn  and  Charles  A.  Glenn, 
but  a  notice  to  quit  was  directed  to  James  Glenn  &  Son,  and 
was  only  served  on  James  Glenn;  and  it  was  held  that  a  notice 
to  one  of  two  joint  lessees  is  good,  and  that  the  verbal  mis- 
take in  the  recital  of  the  names  is  immaterial.16 

Service  of  Notice  for  Possession. 

364.  The  acts  of  March  21,  1772,  December  14,  1863,  April 
3,  1830,  February  28,  1865,  and  March  26,  1825,  to  enable 
tenants  to  obtain  possession  of  demised  premises,  require 
notices  for  possession  to  be  given  by  landlords.  These  acts 
do  not  state  how  such  notices  are  to  be  given.  It  is  remark- 
able that  there  are  but  few  decisions  as  to  the  manner  of 
service.  According  to  the  common  law  of  England  it  was 
necessary  to  give  notice  to  terminate  leases  of  uncertain 
duration,  and  by  the  drift  of  our  decisions  it  seems  that  the 
notices  under  our  acts  can  be  given  in  the  same  way  as  at 
common  law.  Under  the  act  of  1772  it  has  been  the  practice 
to  leave  the  notice  at  the  dwelling-house  of  the  tenant.17 
In  a  case  under  the  act  of  1863,  there  was  evidence  to  show 
that  a  written  notice  to  quit  was  pushed  under  the  defendant's 
door  when  absent  to  evade  the  service;  that  on  his  return  he 
entered  by  the  same  door;  and  that  the  next  day  the  plaintiff 
told  him  of  the  written  notice,  and  the  Supreme  Court  held 
that  such  service  was  sufficient.18  Under  the  act  of  1830,  it 
was  decided  by  the  court  below  that  the  notice  must  be 
served  on  the  party  in  actual  possession  at  the  time,  in  order 
to  deprive  him  of  his  estate.  That  a  sub-lessee  cannot  be 
turned  out  of  his  possession  under  the  act  of  1830  without 
notice,  for  he  may  be  willing  to  pay  the  rent;  but  the  Su- 
preme Court  did  not  consider  the  questions. 

15  Hutchinson  v.  Potter,  n  Pa.  472. 

16  Glenn  v.  Thompson,  75  Pa.  389. 

17  Griffiths  v.  Marsh,  4  T.  R.  465.         18  Currier  v.  Grebe,  142  Pa.  48. 


PROCEEDINGS   TO    RECOVER    POSSESSION.  161 

In  a  court  of  common  pleas  it  was  objected  that  a  notice 
under  the  act  of  1830  did  not  appear  to  have  been  served 
upon  the  premises,  but  the  objection  was  not  sustained.19  In 
the  case  of  the  lease  of  a  theatre,  it  was  held  that  leaving  a 
notice  with  the  lessee's  agent  at  the  theatre  was  sufficient. 
These  few  authorities  appear  to  be  about  all  the  light  we  can 
get  from  the  Pennsylvania  authorities. 

It  seems  that  resort  may  be  had  to  the  English  authorities 
as  to  service  of  notices  to  quit  for  possession.  According  to 
the  English  practice,  service  of  notice  upon  the  tenant  will 
be  good,  if  given  personally,  if  served  upon  the  actual  occu- 
piers, if  given  to  the  assignee  of  the  lessee,  if  delivered  to 
the  wife  or  a  servant  of  the  lessee  at  his  dwelling-house  (when 
delivered  to  a  servant  or  agent  it  should  be  expressly  said 
that  the  notice  is  to  the  lessee  to  quit),  if  the  notice  is  sent 
by  mail,  addressed  to  the  landlord  or  his  authorized  agent.20 

The  best  course  would  seem  to  be  to  serve  the  lessee  per- 
sonally on  the  demised  premises.  If  this  cannot  be  done, 
then  serve  a  notice  at  the  demised  premises  on  the  lessee's 
wife  or  servant,  if  a  dwelling-house,  but  if  a  place  of  business 
then  on  the  principal  person  having  charge  thereof,  and  for 
an  extra  precaution  serve  a  notice  also  on  the  lessee  or  his 
assignee,  if  recognized,  personally.  If  the  lessee  or  the  as- 
signee is  away  from  the  city  or  place  in  which  the  demised 
premises  are  located,  as  an  extra  precaution  send  him  a  notice 
by  registered  letter  and  preserve  the  proof  of  mailing.  In 
case  a  notice  to  quit  is  given  under  the  act  of  1830  for  non- 
payment of  rent,  notice  had  better  be  given  also  to  all  the 
under-tenants,  so  that  they  will  have  an  opportunity  to  pay 
fhe  rent  in  arrear. 

Depositing  a  letter,  properly  addressed,  with  the  postage 
prepaid  is  prima  facie  evidence  that  the  person  to  whom  it 
is  addressed  received  it.  Evidence  that  a  letter  was  so  sent, 

19  Reid  v.  Christy,  2  Phila.  144. 

20  i  Addison  on  Contracts  (8th  ed.),  *  275. 

11 


162  LANDLORD  AND  TENANT. 

demanding  payment  of  rent,  is  competent  to  rebut  the  allega- 
tion that  no  demand  had  been  made;21  and  it  seems  that  this 
authority  will  apply  to  all  notices  given  by  landlords  to  ten- 
ants. As  the  presumption,  however,  may  possibly  be  over- 
come by  the  tenant  testifying  that  he  did  not  receive  the 
letter,  it  will  be  best  to  use  also  other  methods  of  service. 
A  registered  letter,  however,  had  better  be  sent. 

Complaint. 

365.  In  case  the  tenant  shall  refuse  to  comply  with  such 
notice,  the  persons  entitled  to  the  benefit  of  the  act,  or  their 
agent  or  attorney,  may  complain  thereof  to  any  justice  of  the 
peace  in  the  county  where  the  demised  premises  lie.  In 
Philadelphia  county  the  complaint  can  be  made  to  one  of  the 
magistrates. 

The  complaint  should  show:  first,  that  the  lessor  was 
quietly  and  peaceably  possessed  of  the  demised  premises; 
second,  that  he  demised  the  same  to  the  tenant  in  possession 
for  a  certain  term  and  rent  therein  stated,  by  a  written  lease 
or  on  parol  agreement,  in  and  by  which  the  relation  of  land- 
lord and  tenant  is  established  between  the  parties  and  by 
which  said  rent  is  reserved ;  that  the  term  for  which  the  prem- 
ises are  demised  is  fully  ended;  that  three  months'  notice  of 
the  owner's  desire  to  repossess  the  premises  has  been  given 
by  him,  previous  to  the  end  of  the  term  or  current  year,  and 
that  the  tenant  in  possession  has  neglected  or  refused  to  com- 
ply with  the  notice  to  quit  the  premises.  In  case  the  pres- 
ent owner  claims  by  deed  from  the  original  landlord,  the  com- 
plaint should  show  that  on  a  certain  date,  by -a  deed  of  con- 
veyance, duly  made  and  executed,  bearing  date  the  same  day 
and  year,  for  the  consideration  therein  mentioned,  the 
original  lessor  did  grant  and  convey  the  demised  premises 
unto  the  present  owner  (and  his  heirs),  who  declares  that  he 
makes  the  complaint  as  such  grantee. 

21  Folsom  v.  Cook,  19  W.  N.  C.  544. 


PROCEEDINGS   TO   RECOVER    POSSESSION.  163 

In  case  the  landlord  has  died  intestate,  it  will  be  well  to 
state  that  he  died  on  a  certain  date,  intestate,  seized  in  fee  of 
the  demised  premises,  and  that  the  complainant  is  solely  en- 
titled to  the  same  under  the  intestate  law  of  the  state  of  Penn- 
sylvania. In  case  of  a  devise  by  will  or  obtaining  title  other- 
wise, there  should  be  statements  in  the  papers  accordingly. 

Summons. 

366.  Upon  the  complaint  being  made,  the  magistrate  pre- 
pares the  summons.     This  summons  should  contain  a  re- 
cital of  all  the  statements  of  the  complaint. 

Service  of  Summons. 

367.  It  must  be  served  as  in  a  personal  action,  on  the 
tenant  personally  or  by  leaving  a  copy  thereof  at  his  dwelling- 
house,  and  making  known  to  an  adult  member  of  the  family 
the  contents  thereof.     A  service  of  summons  personally  on 
defendant  at  his  dwelling-house  by  leaving  a  copy  of  the 
original  summons  and  making  known  the  contents  is  a  suffi- 
cient service.22 

i 
Hearing. 

368.  If  it  shall  appear  right  and  proper  to  the  justice,  he  en- 
ters judgment  against  the  tenant,  that  he  forthwith  give  up  the 
possession  of  the  premises  to  the  lessor  or  present  owner;  and 
he  shall  also  give  judgment  in  favor  of  the  lessor  or  present 
owner  and  against  the  lessee  or  tenant  for  such  damages  as, 
in  his  opinion,_the  lessor  may  have  sustained,  and  for  all  the 
costs  of  the  proceedings. 

The  act  of  Dec.  14,  1863,  gives  to  a  single  justice  the  juris- 
diction exercised  by  two  justices  and  twelve  freeholders  under 
the  act  of  March  21,  1772. 

Under  the  act  of  1863,  the  justice  must  hear  any  defence 
the  tenant  may  offer.  The  appeal  under  the  act  of  1863  is  in 

22  Snyder  v.  Carfrey,  54  Pa.  90. 


164  .  LANDLORD  AND  TENANT. 

place  of  the  provisions  of  §  13  of  the  act  of  1772,  for  with- 
drawing the  proceedings  from  the  justices  and  freeholders 
upon  the  assertion  by  a  third  party  of  a  title  adverse  to  the 
lessee's  ;  and  of  the  act  of  March  20,  1810,  excluding  a  jus- 
tice's jurisdiction  when  the  title  to  land  may  come  in  ques- 
tion. A  tenant  before  a  justice  or  in  court  on  appeal,  may  set 
up  any  defence  of  which  he  could  avail  himself  in  ejectment 
by  his  lessor.  The  scope  of  an  inquiry  into  the  rights  of  land- 
lords is  no  narrower  than  that  into  the  rights  of  tenants.23 

Warrant  for  Possession. 

369.  Upon  judgment  being  entered,  a  warrant  can  be  is- 
sued to  any  constable  in  the  county  for  obtaining  possession 
of  the  premises  and  to  levy  the  damages  and  costs  of  the 
goods  and  chattels  of  the  lessee  or  tenant  or  other  per- 
son in  possession. 

Appeal. 

370.  The  defendant  may,  at  any  time  within  ten  days  after 
the  rendition  of  the  judgment,  appeal  to  the  court  of  common 
pleas  in  the  manner  provided  in  the  first  section  of  the  act 
relative  to  landlords  and  tenants,  approved  April  3,  1830;  but 
such  appeal  shall  not  be  a  superseded^  to  the  warrant  of  pos- 
session, and  the  appeal  shall  be  tried  in  the  same  manner  as 
are  tried  actions  of  ejectment;  and  if  the  jury  shall  find  in 
favor  of  the  tenant,  they  shall  also  assess  the  damages  which 
he  shall  have  sustained  by  reason  of  his  removal  from  the 
premises  and  for  the  amount  found  by  the  jury,  judgment 
shall  be  rendered  in  his  favor,  with  costs  of  suit,  that  he  re- 
cover possession  of  the  premises;  and  he  shall  have  the  neces- 
sary writ  or  writs  of  execution  to  enforce  the  judgment.    The 
tenant  may  have  a  writ  of  certiorari  to  remove  the  proceedings 
of  the  justice  as  in  other  cases. 

23  Quinn  v.   McCarty,  81    Pa.   475;   Heritage  v.  Wilfong,  58  Pa.   137; 
Mohan  v.  Butler,  112  Pa.  590. 


PROCEEDINGS    TO    RECOVER    POSSESSION.  165 

The  act  of  June  25,  1869,  provides  that  the  appeal  shall  be 
a  superseded*  of  the  warrant  of  possession  in  the  city  of 
Philadelphia,  notwithstanding  the  terms  of  the  act  of  1863. 

Judgment. 

371.  The  judgment  should  include  all  rent  that  has  ac- 
crued up  to  the  time  of  the  rendition  of  the  judgment.24     The 
facts  found  by  the  justice  must  appear  in  the  record  of  the 
judgment  or  by  reference  to  the  complaint,  if  fully  set  forth 
therein.     The  record  must  contain  every  essential  to  support 
his  judgment.     Nothing  which  ought  to  appear  can  be  taken 
by  intendment.26 

Premises  were  not  sufficiently  described.  There  were 
boundaries  given  of  the  land,  but  the  acres  were  in  blank,  with 
the  addition  of  the  words,  "more  or  less."  In  this  case  the 
lease  was  said  to  be  for  a  year  or  at  will.  One  or  other 
should  have  been  stated.26 

B«cord. 

372.  The  record  of  the  justice  or  magistrate  should  record 
the  proceedings  and  should  particularly  find  the  facts  stated 
in  the  complaint,  using,  as  far  as  possible,  the  words  of  the 
act  of  assembly  and  its  amendments. 

Certiorari. 

373.  The  tenant  may  have  a  writ  of  certiorari.     Upon  a 
certiorari  the  evidence  is  not  brought  up.     The  regularity  of 
the  proceedings  only  is  examined.     It  does  not  supersede  or 
stay  the  proceedings  except  in  the  city  of  Philadelphia,  as 
aforesaid.     The   writ   of   certiorari  must   be   issued   within 
twenty  days,  or  in  Philadelphia,  under  the  act  of  1865,  within 
ten  days  after  the  judgment  is  entered. 

24  Dunmire  v.  Price,  12  W.  N.  C.  179. 

25  Givens  v.  Miller,  62  Pa.  133;  Davis  v.  Davis,  115  Pa.  261. 

26  Givens  v.  Miller,  62  Pa.  133. 


166  LANDLORD  AND  TENANT. 

Appeal  to  Superior  Court. 

374.  An  appeal  to  the  Superior  Court  from  the  judgment 
of  the  court  of  common  pleas  can  be  taken ;  but  such  appeal 
to  the  Superior  Court  will  not  be  a  supersedeas  to  the  writ  of 
possession  when  the  judgment  shall  be  against  the  party  at 
whose  instance  the  writ  of  certiorari  was  issued. 


CHAPTER  XX. 

PROCEEDINGS  TO  RECOVER  POSSESSION  IN  PHILADELPHIA  ON 

A  LOST  LEASE. 

SECTION 

375.  Act  of  February  28,  1865. 
Act  of  February  28,  1865. 

375.  "In  all  cases,  in  the  city  of  Philadelphia,  where  there 
is  a  lease  or  verbal  letting  of  property  for  a  term  of  years  or 
from  year  to  year,  and  the  landlord,  whether  the  owner  at  the 
time  of  such  lease  or  letting  or  by  purchase  subsequent 
thereto,  has  lost  the  lease  or  evidence  of  the  beginning  and 
conclusion  of  the  term  or  cannot  produce  proof  of  the  same, 
it  shall  be  lawful  at  any  time  after  the  first  year  or  after  the 
term  of  years,  as  the  case  may  be,  for  the  landlord  desiring 
to  recover  possession  of  the  demised  property,  to  give  notice 
in  writing  to  the  tenant  that  he  has  lost  such  lease  or  is  un- 
able to  make  such  proof,  and  requiring  the  tenant,  within 
thirty  days  from  the  time  of  service  of  such  notice,  to  furnish 
him,  in  writing,  with  the  date  at  which  his  term  of  tenancy 
commenced,  and  such  notice,  if  supported  by  affidavit,  shall 
be  evidence  of  what  it  sets  forth.  If  the  tenant  shall  furnish, 
in  writing,  the  date  as  required,  such  writing  shall  be  evi- 
dence of  the  facts  contained  in  it ;  but  if  the  tenant  shall  fail 
or  refuse,  within  thirty  days,  to  comply  with  the  said  re- 
quirement, the  landlord  may,  at  the  expiration  of  that  period, 
give  to  the  tenant  three  months'  notice  to  quit  the  premises 
occupied  by  him,  and  so  shall  proceed  thereafter  in  the  same 
manner  as  is  now  provided  in  case  of  the  usual  notice  to  quit 
at  the  end  of  the  term.  Providing,  That  if  the  tenant  shall 

167 


168  LANDLORD  AND  TENANT. 

make  affidavit  within  the  thirty  days  aforesaid,  that  he  is  un- 
able to  comply  with  the  requirement  of  the  landlord,  stat- 
ing the  causes  of  such  inability,  the  landlord  shall  give  six 
months'  notice  to  the  tenant  to  remove  from  the  demised 
premises  upon  which  he  shall  proceed  as  provided  in  cases  of 
the  three  months'  notice  as  aforesaid."  x 

i  i  P.  &  L.  Dig.  2654;  1865,  P.  L.  253,  §  i. 


r«  I!    •• 

••  '--».--'• 


CHAPTER  XXI. 

NEGLIGENCE  AS  TO  RENTED  PROPERTY. 


SECTION 

376.  Defects  before  renting. 

377.  Where  property  rented  is  un- 

fit for  use. 

378.  Landlord  employing  plumber. 

379.  Liability  of  owners. 

380.  Landlord    and    tenant    may 

both  be  liable. 

381.  Liability  in  case  of  an  open 

grate. 

382.  Landlord  and  tenant  may  sue 

at  same  time. 

383.  Where     landlord     interferes 

with  tenant. 

384.  Where   tenant   injures   prop- 

erty. 

385.  Liability  between  tenants. 


386.  Liability  depending  upon  ob- 

ligation to  repair. 

387.  Remedy  in  case  tenant  com- 

mits waste. 

388.  Act  of  1822  as  a  remedy  for 

waste. 

389.  Order  to  permit  inspection  of 

waste. 

390.  Writ  of  eslrepement. 

391.  Remedy  by  suit  for  waste. 

392.  Remedy  by  an  injunction  for 

waste. 

393.  Liability  of  contractor  for  in- 

jury. 

394.  Liability  for  leakage  from  a 

cess-pool. 

395.  Liability    for    not    repairing 

sidewalk. 


Defects  Before  Renting. 

376.  When  a  person  rents  a  property  to  another,  he  is  li- 
able for  defects  thereof;  he  is  liable  for  defects  which  exist 
when  he  parts  with  its  control.1 

Where  Property  Rented  is  Unfit  for  Use. 

377.  One  who  erects  a  building  for  rent  is  bound  to  use 
reasonable  skill  and  diligence  in  its  erection,  regard  being 
had  to  the  uses  and  purposes  for  which  it  is  designed.     If  a 
landlord  rents  a  house  unfitted  for  the  purpose  of  the  tenant, 
as  for  heavy  storage,  he  must  forbid  such  use  in  the  lease,  or 


I  Redfield  on  Negligence,  §  502. 


169 


170  LANDLORD  AND  TENANT. 

he  will  be  liable  to  a  stranger  for  damages.2  In  Curtin  v. 
Somerset,  140  Pa.  70,  the  Supreme  Court  remarked  that  in 
Godley  v.  Hagerty,  the  builder  was  the  owner  and  that  in  Car- 
son v.  Godley,  the  warehouse  was  erected  under  the  personal 
superintendence  of  the  owner.3 

Landlord  Employing  Plumber. 

378.  It  has  been  held  that  a  landlord  who  employs  a 
plumber  to  construct  a  water-closet  in  the  upper  story  of  a 
house,  is  not  responsible  for  damages  resulting  from  the  im- 
proper construction  of  the  water-tank  to  the  tenant  of  the 
premises,  it  not  being  shown  that  the  plumber  selected  was 
not  a  competent  workman.    That  as  the  injury  arose  not  from 
the  water-closet,  which  was  a  lawful  and  useful  construction 
in  itself,  but  from  want  of  skill  in  the  construction  of  it,  the 
landlord  was  not  liable.4     Plumbing  work  is  a  part  of  the 
real  estate  and  for  defects  thereof  the  owner  of  the  house  is 
presumptively   responsible.     If  the  landlord  provides  pipes 
and  other  plumbing  work  of  good  quality,  the  tenant  only  is 
responsible  for  the  mode  in  which  these  accommodations  are 
used,  and  for  any  overflow  caused  either  by  neglect  to  turn 
off  the  water,  or  by  such  misuse  of  the  works  as  deprives  them 
of  power  to  stop  the  flow  of  water.5 

Liability  of  Owners. 

379.  When  an  owner  has  done  all  in  his  power  to  erect  a 
safe  structure,  he  is  not  liable  to  others  for  its  occult  defects, 
if  he  had  not  knowledge  of  them  nor  reason  to  believe  their 
existence.     A  warehouse  fell  and  destroyed  barrels  of  whisky 
and  the  plaintiff  claimed  that  the  house  had  been  negligently 
built  by  defendants  and  there  was  a  verdict  for  the  defend- 
ants.6 

2  Godley  v.  Hagerty,  20  Pa.  387;  Carson  v.  Godley,  26  Pa.  in. 

3  Curtin  v.  Somerset,  140  Pa.  70. 

4  Meany  v.  Abbott,  6  Phila.  256. 

5  Redfield  on  Negligence,  §  513.  6  Walden  v.  Finch,  70  Pa.  460. 


NEGLIGENCE    AS   TO    RENTED    PROPERTY.  171 

Xandlord  and  Tenant  may  both  be  Liable. 

380.  The  landlord  and  tenant  may  be  liable  for  the  same 
injury — the  former  for  negligent  construction,  and  the  latter 
for  negligent  use  of  the  premises.     A  landlord  is  not  liable 
for  a  nuisance  erected  by  his  tenant  after  the  renting,  nor  in 
the  absence  of  a  covenant  in  the  lease  for  the  consequences 
of  the  natural  decay  of  the  premises,  as  where  fences  are  suf- 
fered by  the  tenant  to  fall  into  decay,  whereby  a  stranger's 
cattle  stray  and  are  injured.7 

Liability  in  Case  of  an  Open  Grate. 

381.  There  was  a  vault  under  the  sidewalk  on  the  public 
street  in  front  of  the  premises,  into  which  there  was  an  open- 
ing, covered  by  a  grate.     One  of  the  bars  of  the  grate  was 
broken  during  the  term,  and  by  reason  thereof  a  person  was 
injured  and  it  was  held  that  the  tenant  was  liable,  but  not  the 
landlord ;  for  it  was  shown  that  the  premises  were  in  good 
repair  when  demised,  and  it  did  not  appear  that  the  landlord 
was  bound  to  repair.8 

Landlord  and  Tenant  may  Sue  at  Same  Time. 

382.  A  tenant  and  landlord  may  both  maintain  actions  at 
the  same  time  for  injury  done  to  the  estate;  the  former  for 
the  interruption   of  his   possession   and   diminution   of  his 
profits,  the  latter  for  the  permanent  injury  to  his  property.9 

"Where  Landlord  Interferes  with  Tenant. 

383.  A  tenant  may  sue  the  landlord  for  any  interference 
with  the  leased  premises,  in  violation  of  the  lease.10 

TJThere  Tenant  Injures  Property. 

384.  A  landlord  may  sue  the  tenant  for  an  injury  to  the 
demised  premises.11 

7  Redfield  on  Negligence.  §  56.        8  Bears  v.  Ambler,  g  Pa.  193. 
9  2  Hilliard  on  Torts,  584.  TO  2  Milliard  on  Torts,  584. 

n  2  Hilliard  on  Torts,  589. 


172  LANDLORD    AND   TENANT. 

Liability  Between  Tenants. 

385.  As  between  different  tenants  under  a  common  land- 
iord,  the  question  of  liability  from  the  condition  of  the  prem- 
ises is  always  one  of  negligence  in  the  use  of  premises.12 

Liability  Depending  upon  Obligation  to  Repair. 

386.  If  a  landlord  agrees  to  repair,  he  will  be  liable  to  a 
third  person  for  the  want  of  the  repairs.13 

Remedy  in  Case  Tenant  Commits  Waste. 

387.  Waste  as  respects  tenants  is  the  spoil  or  destruc- 
tion done  or  permitted  to  lands,  houses  or  other  corporeal 
hereditaments  by  the  tenant  thereof,  to  the  prejudice  of  the 
heir  or  of  him  in  reversion  or  remainder.     Waste  may  be 
permissive  or  active  or  voluntary.     If  a  tenant  should  permit 
buildings  to  go  to  ruin  for  the  want  of  tenantable  repairs,  that 
would  be  permissive  waste ;  if  he  should  injure  buildings,  that 
would  be  voluntary  waste,  other  cases  of  voluntary  waste 
would  be  in  case  a  tenant  should  not  cultivate  farm  land  ac- 
cording to  usual  course  of  husbandry  or  when  he  should  open 
and  work  new  mines. 

Act  of  1822  as  a  Remedy  for  Waste. 

388.  It    is    provided    that    it    shall    and    may    be      law- 
ful   for    any    owner    or    owners    of    any    lands    or    tene- 
ments, leased  or    let    for    years    or    at    will,    at  any  time 
during   the    continuance    or  after    the    expiration  of    such 
demise,  and  due  notice  given  to  the  tenant  or  tenants  to 
leave  the  same,  according  to  the  provisions  of  the  act  of  as- 
sembly in  such  case  made  and  provided,  to  apply  to  the  court 
of  common  pleas  of  the  proper  county  while  in  session,  or  to 
any  judge  thereof,  in  vacation,  by  petition  and  affidavit  made 
by  him,  her  or  them,  or  some  credible  person,  setting  forth 
such  of  the  facts  before  mentioned  as  may  be  necessary  to 

12  2  Milliard  on  Torts,  589.  13  2  Hilliard  on  Torts,  588. 


NEGLIGENCE    AS    TO    RENTED    PROPERTY.  173 

bring  him,  her  or  them  within  the  provisions  of  the  act  and 
that  the  tenant  or  person  in  possession  has  committed  waste 
to  the  freehold  (or  allow  it  to  be  done  by  others),  or  threat- 
ens to  do  the  same,  and  that  such  owner  or  some  other  per- 
son for  him  or  them,  verily  apprehends,  in  consequence  of 
such  threat,  that  such  waste  will  be  committed,  unless  the 
sanxe  be  restrained  by  law,  it  shall  be  lawful  for  the  court  or 
judge  to  order  a  writ  of  estrepement  to  stay  waste.  A  motion 
my  be  made  to  dissolve  the  writ.14  The  writ  cannot  be  issued 
without  security  being  given  to  indemnify  the  respondent  as 
in  case  of  the  issuing  of  preliminary  injunctions.15 

Order  to  Permit  Inspection  of  Waste. 

389.  After  the  issuing  of  a  writ  of  estrepement  the  court  will 
make  an  order  for  the  inspection  of  the  premises  to  ascertain 
whether  waste  has  been  committed  since  the  service  of  the 
writ.16 

Writ  of  Estrepement. 

390.  Valuable  forms  in  proceedings  for  waste  appear  in 
Richards'    Pennsylvania    Form    Book,    under    the    subject, 
"Estrepement"  (see,  also,  his  comments).    The  writ  contains  a 
command  to  the  sheriff  to  prohibit  and  restrain  the  defendant 
from  committing  waste  and  also  a  command  to  the  defend- 
ant not  to  commit  waste.     By  virtue  of  the  writ  the  sheriff 
may  resist  those  who  commit  waste  or  offer  to  do  so;  and  he 
may  use  sufficient  force  for  the  purpose.     At  common  law  if 
the  writ  is  directed  and  delivered  to  the  tenant  and  he  com- 
mits waste,  the  court  could  imprison  for  contempt.17 

Remedy  by  Suit  for  Waste. 

391.  If  a  tenant  injures  the  landlord's  house  or  lands  the 
landlord  'can  sue  for  damages. 

14  Act  March  29.  1822.  15  Act  April  11,  1862. 

16  Lutz  v.  Winkler,  4  W.  N.  C.  442.        17  3  Blackstone's  Com.  233. 


174  LANDLORD   AND    TENANT. 

Remedy  by  an  Injunction  for  Waste. 

392.  The  equity  jurisdiction  of  courts  was  extended  to  the 
prevention  or  restraint  of  the  commission  or  continuance  of 
acts  contrary  to  law  and  prejudicial  to  the  interests  of  the 
community,  or  the  rights  of  individuals,  and,  consequently, 
waste  being  an  act  contrary  to  law,  an  injunction  will  be 
granted.18 

Liability  of  Contractor  for  Injury. 

393.  Where  a  contractor  for  cleaning  a  well  in  an  out- 
house removed  some  boards  in  the  course  of  his  work  which 
were  replaced  on  the  roof  without  being  fastened  and  thirteen 
months  after  the  work  was  done  and  the  contractor  was  paid 
by  the  landlord,  a  member  of  the  family  of  the  tenant  of  the 
premises  was  injured  by  one  of  the  boards  falling  upon  her. 
It  was  held  that  the  contractor  was  not  liable  for  such  injuries. 
That  if  the  contractor  had  failed  to  fully  perform  his  contract, 
he  would  be  responsible  to  the  landlord  with  whom  he  con- 
tracted for  any  breach ;  but  he  owed  no  duty  to  a  stranger  for 
such  non-performance,  much  less  to  one  who  was  injured 
more  than  a  year  after  the  work  was  done.     The  contractor's 
work  having  been  accepted  by  the  landlord,  he  owed  no  duty 
to  persons  who  should  afterwards  use  the  well ;  and  the  land- 
lord not  being  bound  to  replace  the  boards  unless  under  a 
covenant  to  repair;  it  was  the  duty  of  the  tenant  of  the  prem- 
ises to  secure  the  boards  if  they  were  dangerous,  or  to  see 
that  they  were  made  secure  by  the  one  whose  duty  it  was  to 
do  so.19 

Liability  for  Leakage  from  a  Cess-pool. 

394.  It  was  held  that  if  a  cess-pool  was  not  improperly 
near  a  neighbor's  dwelling,  was  properly  constructed  and 
was  in  good  repair  when  the  tenant  took  possession,  the 

18  Act  June  16,  1836;  I  P.  &  L.  Dig.  710;  1836,  P.  L.  784,  §  13. 

19  Fitzmaurice  v.   Fabian,  29  W.   N.   C.  339;   Curtin  v.   Somerset,   140 
Pa.  70. 


NEGLIGENCE  AS  TO  RENTED  PROPERTY.        175 

landlord  was  not  responsible  for  injuries  to  a  neighbor  from 
leakage.  The  tenant  who  used  the  defective  cess-pool  would 
be  liable  because  of  its  use.  The  court  did  not  place  the 
liability  of  the  tenant  upon  his  liability  to  repair.  It  seems 
that  if  the  leakage  could  have  been  stopped  by  an  ordinary 
repair  the  tenant  would  also  be  liable  on  that  ground.20 

Liability  for  Not  Repairing  Sidewalk. 

395.  It  is  the  duty  of  property  owners  on  a  street  to  keep 
in  proper  repair  the  sidewalk  along  their  respective  residences, 
and  if  they  fail  to  do  so  they  will  be  liable  for  any  injury  re- 
sulting therefrom.  An  owner  of  property  in  the  actual  pos- 
session of  a  tenant  is  liable  for  injuries  caused  by  defects  in 
the  sidewalk  on  the  public  streets,  along  his  property,  even 
though  he  had  no  notice  to  repair  the  same.  Owing  to  this 
primary  liability  after  recovering  from  the  municipality,  the 
latter  can  recover  from  the  property  owner.21 

20  Wander  v.  McLean,  134  Pa.  334. 

21  Mintzer  v.  Hogg,  192  Pa.  137. 


CHAPTER  XXII. 


RIGHTS  OF  LANDLORDS  AND  TENANTS  IN  CASE  RENTED  PROP- 
ERTY IS  TAKEN  FOR  PUBLIC  USE. 


SECTION 

401.  Landlords   and   tenants   may 

unite  to  recover  damages 
for  taking  property  for 
public  use. 

402.  Land  may  be  cultivated  until 

possession  taken. 

403.  Effect  of  taking  on  liability 

for  rent. 

404.  What    damages    can    be    re- 

covered. 


SECTION 

396.  Constitutional  provision. 

397.  Difference  when  state  takes. 

398.  Damages    awarded    to    land- 

lords and  tenants. 

399.  Party    wall    condemned    and 

taken      down      by      public 
authority. 

400.  Tenant  can  recover  damages 

to   building  erected   before 
ordinance  for  removal. 

Constitutional  Provision. 

396.  The  constitution  of  the  state  of  Pennsylvania  provides 
that:  "Municipal  and  other  corporations  and  individuals  in- 
vested with  the  privilege  of  taking  private  property  for  pub- 
lic use,  shall  make  just  compensation  for  property  taken,  in- 
jured or  destroyed  by  the  construction  or  enlargement  of  their 
works,  highways  and  improvements,  which  compensation 
shall  be  paid  or  secured  before  such  taking,  injury  or  de- 
struction.    The  general  assembly  is  hereby  prohibited  from 
depriving  any  person  of  an  appeal  from  any  preliminary  as- 
sessment of  damages  against  any  such  corporation  or  indi- 
viduals, made  by  viewers  or  otherwise;  and  the  amount  of 
such  damages,  in  all  cases  of  appeal,  shall,  on  the  demand  of 
either  party,  be  determined  by  a  jury,  according  to  the  course 
of  the  common  law." 

Difference  when  State  Takes. 

397.  When  the   commonwealth   exercises  the  power  of 
176 


RENTED  PROPERTY  TAKEN  FOR  PUBLIC  USE.      177 

eminent  domain,  it  must  provide  the  means  of  payment  be- 
fore taking  the  property;  but  a  corporation  or  individual  must 
pay  or  secure  its  price.1 

Damages  Awarded  to  Landlords  and  Tenants. 

398.  When  land  is  appropriated  by  the  sovereign,  the  land- 
lord is  entitled  only  to  the  present  value  of  his  reversion,  or 
the  property  subject  to  the  term  of  the  lease,  and  the  tenant, 
being  personally  bound,  is  entitled  to  the  value  of  his  term, 
subject  to  the  rent  and  so  much  besides  as  will  indemnify  him 
for  the  rent  payable  in  the  future;  but  a  chancellor  would  re- 
gard the  damages  awarded  to  the  tenant  to  indemnify  him 
against  his  covenant  to  pay  rent  as  in  equity  the  money  of 
the  landlord,  and  decree  it  paid  to  him ;  a  jury  of  view  to  as- 
sess damages  ought  at  once  to  award  it  to  him.     The  in- 
evitable consequence  of  such  award  is  to  release  the  tenant 
from  his  personal  obligation.     The  landlord  receives  his  full 
loss,  the  value  of  the  rent  and  the  reversion — what  the  land, 
subject  to  the  term,  would  be  worth  to  a  purchaser  of  the 
reversion,  who  would,  of  course,  be  entitled  to  the  rent  as  in- 
cident to  it.     The  tenant  receives  his  full  loss,  the  value  of 
his  term,  subject  to  the  rent;  what  it  would  be  worth  to  an 
assignee  who  would  assume  the  payment  of  the  rent.     If  the 
rent  is  the  full  value  of  the  premises  he  has  lost  nothing,  and 
is  entitled  to  receive  nothing.     If  he  has  paid  a  consideration 
for  the  term,  and  has  it  at  a  pepper-corn  or  nominal  rent,  he 
is  entitled  to  recover  what  such  a  lease  is  worth.2 

Party  Wall  Condemned  and  Taken  Down  by  Public  Authority. 

399.  The  owner  of  an  adjoining  lot  caused  a  party-wall  to 
be  condemned,  whereby  he  was  authorized  to  remove  the 
same.     In  taking  it  down  the  tenant's  house  was  exposed. 
Held,  not  a  defence  to  a  claim  for  payment  of  rent.3 

I  McClinton  v.   Railroad   Co.,  66  Pa.  404;   Railroad   Co.   v.   Railroad 
Co.,  141  Pa.  407. 

•2  Dyer  v.  Wightman,  66  Pa.  425. 
3  Wilson  v.  Barns,  17  W.  N.  C.  27. 
12 


178  LANDLORD  AND  TENANT. 

Tenant  can  Recover  Damages  to  Building  Erected  before  Ordinance 
for  Removal. 

400.  A  tenant  who  has  leased  a  building  after  the  passage 
of  an  ordinance  providing  for  the  widening  of  the  street  upon 
which  the  building  is  situate,  is  entitled  to  recover  damages 
for  the  injury  caused  by  the  demolition  and  re-erection  of  the 
front  of  the  building  which  had  been  erected  before  the  en- 
actment of  the  ordinance.     An  ordinance  for  the  widening 
of  a  street  was  subsequent  to  the  date  of  the  plaintiff's  lease. 
Held,  that  the  tenant  could  recover  damages  for  actual  injury 
from  dirt  and  grime,  which  were  necessarily  encountered, 
and  which  injured  his  stock.     He  could  not  recover  for  loss  of 
profits  in  business.4 

Landlords  and  Tenants  may  Unite  to  Recover  Damages  for  Taking 
Property  for  Public  Use. 

401.  The  landlords  and  tenants  of  properties  taken  and  in- 
jured by  railroad  corporations  may  unite  in  a  proceeding  to 
recover  damages  for  such  taking  or  injury.     The  jury  should 
ascertain  the  aggregate  amount  of  damages  sustained  and 
designate  the  proportion  to  which  each  of  the  parties  inter- 
ested is  entitled.     In  estimating  the  damages  payable  to  the 
tenant  it  is  proper  for  the  jury  to  consider  as  elements  of 
damage  the  facts  that  the  location  of  the  railroad  compelled 
the  removal  of  the  business  conducted  by  the  tenant,  and  the 
depreciation  in  value  of  the  leasehold,  and  also  of  the  ma- 
chinery and  personal  property  of  the  tenant  used  in  the  busi- 
ness consequent  upon  such  removal.5 

Land  may  be  Cultivated  until  Possession  Taken. 

402.  A  land  owner  may  continue  in  the  cultivation  of  his 
land  after  the  location  of  a  railroad  upon  it,  until  actual  entry 
by  the  company,  and  may  recover  compensation  not  only  for 
injuries  to  the  land  but  for  the  loss  of  growing  crops  planted 

4  Justice  -v.  Phila.,  169  Pa.  503;  Shaw  v.  Phila.,  169  Pa.  506. 

5  Getz  v.  Railroad  Co.,  105  Pa.  547. 


RENTED  PROPERTY  TAKEN  FOR  PUBLIC  USE.      1791 

before  a  bond  given  or  notice  to  enter  for  construction.  So 
a  tenant  to  whom  the  land  is  demised  after  the  location  of  the 
line  and  the  notice  thereof  may  recover  for  all  his  growing 
crops  destroyed  by  the  construction,  which  were  planted  be- 
fore he  had  notice  of  the  time  when  his  possession  would  be 
interfered  with  by  the  company.6 

Effect  of  Taking  on  Liability  for  Bent. 

403.  Where  under  the  right  of  eminent  domain  a  lease  is 
wholly  destroyed,  the  tenant  is  relieved  from  the  payment  of 
any  further  rent  although  the  term  of  the  lease  may  not  have 
expired ;  but  where  there  is  but  a  partial  destruction  the  lessee 
is  liable  for  the  rent  for  the  residue  of  the  term  and  he  must 
look  to  the  state  or  her  grantee  for  compensation  for  any 
injury  he  may  have  sustained.7 

What  Damages  can  be  Recovered. 

404.  Tenants  were  under  a  contract  to  remove  daily  from 
the  city  gas  works  a  large  quantity  of  tar  and  the  premises 
which  they  leased  enabled  them  to  receive  the  tar  without 
cost  and  to  manufacture  it  without  transporting  it  to  and 
from  distant  points,  and  in  a  proceeding  to  recover  damages 
for  the  taking  of  the  leasehold  premises  by  a  railroad  com- 
pany it  was  held  proper  to  admit  evidence  that  after  the  land 
was  taken  it  became  necessary  to  carry  the  tar  to  the  place  of 
distillation  by  a  boat  specially  constructed;  that  it  was  nec- 
essary to  erect  temporary  works  for  distillation  of  tar  when 
received  and  that  it  was  necessary  to  haul  over  inaccessible 
roads  the  barrels  needed  to  hold  the  tar  and  its  product.8 

6  Lafferty  v.  Railroad  Co.,  124  Pa.  297. 

7  Rap  v.  Klair,  5  Mont.  16. 

8  Ehret  v.  R.  R.  Co.,  151  Pa.  158. 


CHAPTER  XXIII. 

FEES  OF  CONSTABLES,  JUSTICES  OF  THE  PEACE  AND  WATCH- 
MEN IN  LANDLORD  AND  TENANT  PROCEEDINGS. 

SECTION  SECTION 

405.  The  act  of  Feb.  17,  1899,  re-  lating  to  the  fees  of  justices 

lating  to  fees  of  constables.  and  magistrates. 

405*.  The  act  of  May  23,  1893,  re-  406.  No   provision   in  the  act  of 

1899  for  watchman. 

The  Act  of  Feb.  17,  1899,  relating  to  Fees  of  Constables. 

405.  The  act  of  May  23,  1893,*  provided  for  fees  of  con- 
stables in  Pennsylvania.  The  intention  of  the  act  was  to 
make  the  fees  uniform  throughout  the  state.  The  act  pro- 
vided that  all  inconsistent  acts  or  parts  of  acts  were  repealed. 
By  the  act  of  Feb.  17,  1899,*  *  the  fees  of  constables  are  fixed 
nearly  the  same  as  under  the  act  of  1893,  as  follows: 

For  executing  landlords'  warrant, $0.50 

For  taking  inventory  of  goods  (each  item), . . .     .02 

For  distraining  goods, 50 

For  selling  the  same,  for  each  dollar  (not  ex- 
ceeding one  hundred  dollars), 03 

For  each  dollar  above  one  hundred  dollars, . .     .02 

For  advertising  the  same, i.oo 

For  copy  of  vendue  paper  when  demanded 

(each  item), 02 

For  putting  up  notice  of  distress  at  mansion 
house,  or  at  any  other  place  on  the  prem- 
ises,   25 

For  executing  a  writ  of  possession, 2.00 

For  executing  writ  of  restitution, 2.00 

i  i  P.  &  L.  Dig.  2064;  1893.  P.  L.  117,  §  2.           i*  P.  L.  1899,  p.  3. 
180 


FEES   OF   CONSTABLES,  ETC.  181 

For  serving  summons  in  landlord  and  tenant 

proceedings, $0.50 

For  serving  summons  notices  on  tenant, 50 

Constable  and  appraisers,  personally,  each 
one  dollar  on  appraisement, i.oo 

The  Act  of  May  23,    1893,  Relating  to  the  Fees  of  Justices  and 
Magistrates. 

405  *.  By  the  act  of  May  23,  1893,2  the  fees  of  justices  and 
magistrates  throughout  the  state  in  landlord  and  tenant  pro- 
ceedings are  as  follows : 

Holding     inquisition     under     landlord     and 

tenant  act,  each  day,  each  justice, $2.00 

Process,  et  cetera,  to  sheriff,  each  justice, 75 

Recording  proceedings,  each  justice, 1.50 

Writ  of  restitution,  each  justice, 75 

Fees  in  landlord  and  tenant  proceedings  under  act  of  1830 
are: 

Entering  complaint, $0.25 

Issuing  process, 25 

Hearing  and  determining  case, 50 

Record  of  proceedings, 50 

Writ  of  possession  (and  return), 50 

When  more  than  one  magistrate  is  required 
in  landlord  and  tenant  proceedings  the 
above  fees  shall  be  charged  by  each  magis- 
trate. 

Fees  in  landlord  and  tenant  proceedings  under  act  of  1863 
are: 

Entering  complaint, $0.75 

Issuing  process, 75 

Hearing  and  determining  case, i.oo 

Record  of  proceedings, 1.50 

Issuing  writ  of  restitution  (and  return), i.oo 

2  i  P.  &  L.  Dig.  2057;  1893,  P.  &  L.  117,  §  i. 


182  LANDLORD    AND    TENANT. 

No  Provision  in  the  Act  of  1899  for  Watchman. 

406.  Under  the  act  of  1872  the  fees  for  watchmen  in 
Philadelphia  county  were  fixed  at  the  rate  of  $3.00  per  day. 
The  act  of  1893  did  not  provide  and  the  act  of  1899  does  not 
provide  for  the  fees  of  watchmen,  and  it  may  possibly  be  held 
that  in  Philadelphia  they  will  still  be  entitled  to  their  fees 
under  the  act  of  1872. 


CHAPTER  XXIV. 


MINING   LEASES. 


PAGE  184. 


407.  Mining    leases    in    Pennsyl- 

vania. 

408.  Mining   right   distinct   from 

surface  right. 

409.  Rights  of  tenant  for  life. 

410.  Rights  of  guardians  to  lease. 

411.  Tenant  bound  to  work  mine. 

412.  Clause  for  re-entry  necessary. 

413.  Incidental    rights    of    mining 

tenant. 

414.  Right  of  support. 

415.  Loss  of  springs  on  surface. 

416.  Tenant  cannot  open  mines. 

417.  Rent  to  be  paid,  though  no 

clay  be  taken  out,  not 
damages. 

418.  No  warranty  of  coal. 

419.  Relief  in  case  of  mistake. 

420.  Tenants  taking  partners. 

421.  Forfeiture  for  not  developing 

favored. 

422.  Manner  of  conveying  in  case 

of  sales  of  minerals. 

423.  Questions     as     to     whether 

there  is  a  sale,  a  lease  or 
right  to  take  coal  without  a 
sale. 

424.  Mining  by  tenants   in   com- 

mon. 

425.  Oil  and  gas  leases. 

426.  Right  to  mine  for  oil  or  gas 

is    necessarily   exclusive    of 


the  right  of  the  landlord  to 
mine. 

427.  Liability   to    pay    compensa- 

tion in  case  of  exhaustion  of 
mines. 

428.  Obligation   to   drill   through 

land    worthless    for    oil    or 
gas. 

429.  Mortgages  of  mineral  lease- 

holds. 

430.  Perpetual  lease  of  ore  lands. 

431.  Options   to   drill   or   to   pay 

rent. 

432.  Provisions  for  the  forfeiture 

of  an  oil  or  gas  lease  for  the 
benefit  of  the  lessor  only. 

433.  Right  of  mining  tenants  to 

pollute  streams. 

434.  Liability    for    manufacturing 

coke    and    injuring    crops, 
etc.,  of  adjoining  premises. 

435.  As  to  whether  or  not  a  min- 

ing lease  has  been  forfeited 
for  not  operating. 

436.  Rights  to  make  openings  to 

reach  coal. 

437.  Agreements  for  diligence  in 

drilling  and  working  for  oil, 
etc. 

438.  In  agreements  for  coal  leases 

time  is  of  the  essence  of  the 
contract. 

183 


184 


LANDLORD    AND    TENANT. 


SECTION 

439.  Relief  against  forfeiture  of  an 

oil  and  gas  lease  for  non- 
payment of  rent. 

440.  Partnership  in  mineral  lease- 

holds. 

441.  Relief    against    forfeiture    of 

mining  leases. 

442.  A  lease   for  exploration  for 

oil  ceases  when  exploration 
finished. 

443.  Interest  on  royalties. 

444.  Tenant  will  not  be  compelled 

in  equity  to  test  land  for  oil 
or  gas  if  there  is  no  fraud. 

445.  Covenants    to    pay    royalties 

run  with  the  land. 


446.  When    lessee    to    follow    his 

own  judgment  in  sinking 
additional  wells. 

447.  The  meaning  of  the  phrase, 

"to  continue  so  long  as  oil 
or  gas  are  produced  iu  pay- 
ing quantities." 

448.  Necessity     for     having     oil 

leases  recorded. 

449.  Jurisdiction  in  equity  for  ac- 

count of  gas,  etc. 

450.  Rent  may  be  payable  in  oil 

or  gas. 

451.  Liability  of  assignee  of  an  oil 

or  gas  lease  for  the  payment 
of  royalties. 


Mining-  Leases  in  Pennsylvania. 

407.  It  is  customary  in  Pennsylvania  to  lease  lands  for  the 
mining  of  coal  and  other  minerals,  and  for  the  obtaining  of 
coal  oil  and  gas.     By  such  leases  it  is  generally  arranged  that 
the  tenant  is  required  to  mine  or  drill  and  to  pay  the  land- 
lord a  certain  proportion  of  the  products  of  the  mining  or 
drilling,  usually  called  royalties.     Such  leases  are  generally 
for  a  term  of  years,  or  for  so  long  as  ore,  oil,  gas,  etc.,  can 
be  obtained  in  paying  quantities. 

Mining  Bight  Distinct  from  Surface  Bight. 

408.  A  right  to  dig  for  minerals  is  essentially  different 
from  a  right  to  the  soil.     Nothing  is  more  common  in  every 
part  of  the  state  where  coal  or  iron  abounds  than  a  right  to 
dig  for  it  below  the  surface  of  the  ground,  separated  from 
a  right  to  the  surface  itself.     A  grant  of  it  conveys  no  more 
than  a  license  to  take  and  appropriate  the  minerals  beneath ; 
and  it  vests  no  property  in  them  until  they  are  taken  and  ap- 
propriated.1 


I  Brandt  v.  McKeever,  18  Pa.  70;  Grubb  v.  Grubb,  74  Pa.  25. 


MINING    LEASES.  185 

Bights  of  Tenant  for  Life. 

409.  A  tenant  for  life  or  his  grantees  may  work  open  mines 
to  exhaustion.2 

Bight  of  Guardians  to  Lease. 

410.  A  guardian  has  ordinarily  power  to  lease  any  of  his 
ward's  property  of  such  character  as  makes  it  the  subject  of 
a  lease;  but  without  the  approval  of  the  orphans'  court  he 
cannot  dispose  of  any  part  of  the  realty.     Oil  is  a  mineral, 
and  being  a  mineral  is  part  of  the  realty;  and  a  guardian 
cannot  lease  the  same,  as  it  would  in  effect  be  the  grant  of 
the  corpus  of  the  estate  of  his  ward.3     This  doctrine  may 
possibly  be  held  to  extend  to  any  trustee  who  is  bound  to 
preserve  the  corpus  or  principal  of  an  estate  intact. 

Tenant  Bound  to  Work  Mine. 

411.  A  tenant  of  a  mine  is  bound  to  work  the  same  in  a 
proper  manner  and  with  reasonable  diligence,  so  that  the 
lessor  may  receive  the  compensation   or  income   contem- 
plated.    Damages  can  be  recovered  for  failure  to  do  so.4 

/ 
Clause  for  Be-entry  Necessary. 

412.  Clauses  of  re-entry  belong  to  all  mining  leases  from 
the  necessity  of  the  case.     Mining  exhausts  the  land  itself, 
and  if  the  landlord  has  no  clause  of  re-entry  for  non-payment 
of  rent  he  may  lose  not  only  his  rent,  but  that  part  of  his  land 
which  has  been  exhausted  by  the  extraction  of  minerals.     It 
is  not  waste  for  a  tenant  to  mine  and  not  pay  his  rent.5 

Incidental  Bights  of  Mining  Tenant. 

t 

413.  A  lease  which  gives  the  right  to  take  out  all  the  coal 
beneath  a  certain  surface  confers  also  the  right  to  make  all 

2  Irwin  v.  Covode,  24  Pa.  162. 

3  Stoughton's  Ap.,  88  Pa.  198. 

4  Koch's  Ap.,  93  Pa.  434.  5  Heil  v.  Strong,  44  Pa.  264. 


186  LANDLORD  AND  TENANT. 

necessary  openings  to  reach  the  coal.      When  anything  is 
granted  all  the  means  to  obtain  it  are  granted.6 

Bight  of  Support. 

414.  Of  natural  right  the  surface  land  is  entitled  to  support 
from  the  strata  below.7 

Loss  of  Springs  on  Surface. 

415.  The  loss  of  springs  to  the  owner  of  the  surface  by 
reason  of  the  ordinary  working  of  mines  does  not  render  the 
owner  of  minerals  liable  for  damages.8 

Tenant  Cannot  Open  Mines. 

416.  It  is  waste  for  a  tenant  without  authority  to  opeta 
mines  and  take  minerals.     He  can  work  open  mines.9 

Bent  to  be  Paid,  though  no  Clay  be  Taken  Out,  Not  Damages. 

417.  An  agreement  to  pay  for  the  privilege  of  taking  clay, 
whether  exercised  or  not,  is  not  for  liquidated  damages,  but 
for  a  privilege.10 

No  Warranty  of  Coal. 

418.  In  a  lease  there  is  no  implied  warranty  that  the  lease 
contains  coal-veins.11 

Belief  in  Case  of  Mistake. 

419.  A  lease  was  made  upon  the  supposition  that  an  oil- 
well  was  upon  the  demised  premises.     The  well  was  upon 
the  premises  of  another  person,  and  it  was  held  that  the  ten- 
ant was  to  be  relieved  from  the  mistake.12 

6  Trout  v.  McDonald,  83  Pa.  144. 

7  Chadwick  v.  Coleman,  80  Pa.  81. 

8  Coleman  v.  Chadwick,  80  Pa.  81. 

9  Griffin  v.  Fellows,  8iJ^  Pa.  114. 
TO  Johnson  v.  Cowan,  59  Pa.  275. 

11  Harlan  v.  Coal  Co.,  35  Pa.  287. 

12  Mays  v.  D wight,  82  Pa.  462.  '} 


MINING    LEASES.  187 

Tenants  Taking  Partners. 

420.  Where  a  lease  is  made  of  certain  coal  mines  to  two 
persons  as  tenants  in  common,  and  the  lessees  afterwards 
associate  themselves  as  partners  for  the  purpose  of  mining-, 
shipping  and  selling  coal  from  the  demised  premises  for  the 
whole  period  of  the  lease,  the  leasehold  is  thereby  converted 
into  partnership  assets,  and  becomes  the  property  of  the 
firm.13 

Forfeiture  for  Not  Developing  Favored. 

421.  Forfeiture  for  non-development  or  delay  is  essential 
to  private  and  public  interests  in  relation  to  the  use  and  alien- 
ation of  property.     In  such  cases  as  this  equity  follows  the 
law.     In  general,  equity  abhors  a  forfeiture,  but  not  where 
it  works  equity  and  protects  a  land-owner  from  the  laches 
of  a  lessee  whose  lease  is  of  no  value  till  developed,  except  for 
a  purpose  foreign  to  the  agreement.14 

Manner  of  Conveying  in  Case  of  Sales  of  Minerals. 

422.  The  technical  words  grant,  bargain  and  sell,  or  the 
like,  are  not  necessary  to  the  creation  of  a  separate  estate 
in  the  coal,  provided  the  intention  to  sell  the  coal  is  mani- 
fest.15 

The  reports  of  the  decision  of  cases  in  Pennsylvania 
abound  with  questions  as  to  whether  or  not  there  is  a  sale 
of  coal,  and  it  will  be  best,  if  a  sale  is  intended,  to  have  the 
deed  to  conform  as  nearly  as  possible  to  a  regular  deed  of 
conveyance  of  real  estate. 

Questions  as  to  Whether  there  is  a  Sale,  a  Lease  or  Bight  to  Take 
Coal  Without  a  Sale. 

423.  It  is  held  to  be  settled  that  an  instrument  which  is  in 
terms  a  demise  of  all  the  coal  in.  under  and  upon  a  tract  of 

13  Patterson  v.  Silliman,  28  Pa.  304. 

14  Mowne  v.  Armstrong,  Leg.  Int.,  July  14,  1882. 

15  Finnegan  v.  Stineman,  5  Pa.  Super.  Ct.  124. 


188  LANDLORD  AND  TENANT. 

land,  with  the  unqualified  right  to  mine  and  remove  the  same 
is  a  sale  of  the  coal  in  place,  and  this,  too,  whether  the  pur- 
chase-money stipulated  for  is  a  lump  sum  or  is  a  certain  price 
for  every  ton  mined,  and  is  called  rent  or  royalty.  There  is 
no  distinction  to  be  made  between  a  perpetual  lease  and  a 
term  lease  as  to  the  application  of  the  above  law.  There  will 
be  a  sale,  notwithstanding  a  term  is  created  within  which  the 
coal  is  to  be  taken  out.16 

A  deed  of  bargain  and  sale,  with  words  of  inheritance, 
granted  the  perpetual  right  to  mine,  dig,  and  carry  away  coal 
in  certain  veins.  A  royalty  was  reserved  to  the  grantor  on 
all  coal  mined.  It  was  held  that  the  omission  of  the  word 
"all"  before  coal,  and  the  reservation  of  the  word  "royalty/' 
showed  that  it  was  not  the  intention  of  the  parties  to  convey 
the  coal  absolutely,  or  to  exclude  the  grantor  from  mining. 
No  time  was  fixed  for  payment  of  the  royalty,  and  there  was 
no  covenant  requiring  the  grantees  to  mine.  There  was  no 
consideration  for  the  sale.  There  was  a  grant  of  the 
privilege  of  raising  iron  ore  at  twenty-five  cents  per  ton, 
there  was  only  a  sale  of  the  privilege.  After  referring  to 
numerous  cases,  and  considering  them,  the  court  said  that 
it  will  be  observed  that  in  every  case  where  it  is  held  that  an 
exclusive  right  was  conveyed,  a  deed  in  expressed  words 
granted  all  the  mineral  or  provided  payment  for  all.17 

(See  further  on  this  subject  Practical  Directions,  Chapter 
XXV.) 

Mining  by  Tenants  in  Common. 

424.  A  tenant  in  common  may  mine,  but  if  he  does  so  he 
will  have  to  account  to  his  co-tenants  for  their  shares. 

No  presumption  of  partnership  arises  from  the  operation 
of  an  oil  well  by  tenants  in  common.18  Tenants  in  common 
may  become  partners;  but  the  law  will  not  create  the  relation 

16  Finnegan  v.  Stineman,  5  Pa.  Super.  Ct.   124. 

17  Jennings  v.  Beal,  158  Pa.  283. 

18  Neill  v.  Shamburg,  158  Pa.  263. 


MINING    LEASES.  189 

for  them  as  the  consequence  of  a  course  of  conduct  naturally 
referrable  to  the  relation  existing  between  them.19 

Oil  and  Gas  Leases. 

425.  The  grant  of  oil  and  gas  privileges  cannot  be  of  oil 
and  gas  in  place,  as  in  case  of  coal,  iron  and  other  minerals. 

On  the  lease  of  land  for  the  sole  purpose  of  drilling 
and  operating  for  oil  and  gas,  the  lessee's  right  is  in  the 
nature  of  easement  of  entry  and  examination,  with  a  right 
of  possession  arising  where  the  particular  place  of  operation 
is  selected  for  egress,  storage,  transportation,  etc.,  during  the 
continuance  of  operations.  The  real  subject  of  possession 
to  which  the  lessee  is  entitled  is  in  the  oil  and  gas  contained 
in  or  obtainable  through  land;  these  are  minerals  fercc  nature, 
and  are  part  of  the  land  and  belong  to  the  owner  only  so 
long  as  they  are  in  it  and  under  his  control.  The  lessee, 
when  he  has  drilled  a  gas  well  and  controls  the  gas  produced 
thereby,  is  in  possession  of  all  the  gas  in  the  land. 

There  was  a  lease  of  exclusive  right  and  privilege  of  operat- 
ing for  oil  for  the  term  of  fifteen  years.  It  was  for  a  definite 
term.  It  was  only  a  grant  of  the  exclusive  right  to  operate 
for  oil,  not  a  sale  of  the  oil.  It  must  be  treated  as  a  lease 
for  the  production  of  oil  and  not  as  a  sale  of  the  oil  or  the 
land.20 

Hight  to  Mine  for  Oil  or  Oas  is  Necessarily  Exclusive  of  the  Bight 
of  the  Landlord  to  Mine. 

426.  This  principle  arises  from  the  necessity  of  the  case. 
The  joint  operation  of  the  landlord  and  tenant  would  pos- 
sibly conflict,  and  the  tenant  may  be  deprived  of  all  the  bene- 
fits of  the  gas  or  oil  on  the  premises. 

Liability  to  Pay  Compensation  in  Case  of  Exhaustion  of  Mines. 

427.  Where  the  lessor  in  a  coal  lease  sells  to  the  lessee  all 

19  Dunham  v.  Loverock,  158  Pa.  197. 

20  Duffield  v.  Rosenzweig,  144  Pa.  520. 


190  LANDLORD  AND  TENANT. 

the  coal  in  the  land  described  in  the  lease  at  a  certain  mini- 
mum royalty  per  year  for  a  term  of  years,  whether  there  was 
any  coal  or  not;  and  both  parties  know  of  the  existence  of 
workable  and  marketable  coal  in  the  land,  although  they  do 
not  know  the  quantity  of  coal,  the  fact  that  the  coal  is  ex- 
hausted before  the  end  of  the  lease  will  not  relieve  the  lessees 
from  the  payment  of  the  minimum  royalty  for  the  term  of 
years  because  of  such  exhaustion  of  the  coal.21 

The  parties  contracted  with  reference  to  iron  which  was 
supposed  to  exist,  and  did  exist  on  the  lands  demised.  There 
was  no  agreement  to  pay  a  fixed,  absolute  sum  for  ore  in 
place.  The  lessee  was  bound  to  use  all  proper  efforts  to  find 
ore  to  mine,  and  to  take  it  away.  He  was  only  bound  to  pay 
for  the  ore  as  mined  or  as  it  could  be  mined;  and  if  the  ore 
was  exhausted  before  the  termination  of  the  lease,  the  obliga- 
tion to  pay  royalty  ceased.  In  this  case  Fulmer  simply  agreed 
to  mine  a  thousand  tons  of  ore  each  year,  and  to  pay  seven- 
teen and  one-half  cents  per  ton,  whether  he  mined  or  not. 
That  is,  if  he  failed  to  mine  the  quantity  of  ore  he  agreed  to 
take  out,  he  paid  for  it  just  as  if  he  had  mined  it.  But  it  is 
only  for  ore  which  he  might  have  taken  out  if  he  would.  If 
the  ore  was  not  there,  he  was  under  no  duty  to  pay,  because 
he  never  could  get  it.  The  foundation  of  his  liability  to  pay 
was  the  supposition  that  the  ore  was  there.  If  the  ore  was 
not  there  the  fundamental  condition  of  all  liability  is  gone.22 

Obligation  to  Drill  Though  Land  Worthless  for  Oil  or  Gas. 

428.  After  a  lease  was  executed  it  was  claimed  that  the 
demised  premises  were  worthless  for  either  oil  or  gas;  that 
the  land  did  not  contain  either  oil  or  gas  in  paying  quantities. 
It  was  held  that  such  claim  would  not  be  a  defence  in  a  suit 
for  sums  to  be  paid  for  not  drilling,  etc. ;  that  the  damages 
for  delaying  to  drill  were  fixed  and  liquidated  by  the  parties, 
and  that  only  in  this  way  or  by  reserving  rent  could  the  land- 

21  Timlin  v.  Brown,  158  Pa.  606.       22  Boyer  v.  Fulmer,  176  Pa.  282. 


MINING    LEASES.  191 

owner  make  himself  sure  of  any  compensation  for  allowing  an 
oil  or  gas  lease  to  become  and  remain  an  encumbrance  of  his 
property.23 

Mortgages  of  Mineral  Leaseholds. 

429.  In  case  of  a  mining  lease  it  can  be  mortgaged  like  a 
chattel;  and  a  mortgage  in  such  case  will  not  be  subject  to 
the  act  of  June  8,  1881,  providing  against  absolute  convey- 
ances with  parol  and  unrecorded  defeasances.    That  act  is  ap- 
plicable to  deeds  for  real  estate  only.     Mining  leases  may  be 
mortgaged  and  recorded,  etc.,  under  the  act  of  April  27, 
i853.23* 

Perpetual  Lease  of  Ore  Lands. 

430.  A  lease  of  coal  lands  for  a  certain  period  "and  for  such 
other  and  longer  time  as  the  lessee  shall  continue  to  pay  rent 
is  not  invalid  by  reason  of  the  uncertainty  of  the  term."     The 
case  of  Lewis  v.  Effinger,  30  Pa.  281,  and  Effinger  v.  Lewis, 
32  Pa.  367,  settle  the  validity  of  a  lease  for  a  term  certain, 
and  thereafter  to  continue  at  the  will  of  the  lessee.24     A  per- 
petual lease  at  the  will  of  the  lessee  may  be  created  under  the 
common  law  of  Pennsylvania,  inasmuch  as  livery  of  seisin 
is  not  necessary  to  pass  an  estate  which  may  be  equivalent  to 
a  fee  simple.25 

Options  to  Drill  or  to  Pay  Rent. 

431.  An  oil  lease  provided  that  the  lessee  should  complete 
a  well  on  the  leased  premises  within  six  months  "or  in  de- 
fault thereof,  pay  to  the  party  of  the  first  part  for  further  delay 
an  annual  rental  of  $500,  payable  quarterly  in  advance." 
Held,  that  upon  failure  to  drill  the  well  within  six  months, 
the  lessor  was  entitled  to  the  stipulated  rental.26 

23  Springer  v.  Gas  Co.,  145  Pa.  430. 
23*  I  P.  &  L.  Dig.  1607;  P.  L.  368,  §  8. 

24  Myers  v.  Coal  Co.,  126  Pa.  582.       25  Effinger  v.  Lewis,  32  Pa.  367. 
26  Leatherman  v.  Oliver,  .151  Pa.  646;  Galey  v.  Kellerman,  123  Pa.  491. 


192  LANDLORD    AND    TENANT. 

Provisions  for  the  Forfeiture  of  an  Oil  or  Gas  Lease  for  the  Benefit 
of  the  Lessor  Only. 

432.  It  was  provided  that  "a  failure  to  complete  said  well, 
or  pay  said  rental  for  ten  days  after  the  time  above  specified 
for  so  doing,  shall  render  this  agreement  null  and  void,  and  it 
can  only  be  renewed  by  mutual  consent;  and  no  right  of 
action  shall  after  failure  accrue  to  either  party  on  account  of 
the  breach  of  any  promise  or  agreement  herein  contained." 
Held,  that  the  lessor  could  enter  upon  giving  ten  days'  no- 
tice, but  that  the  lessee  could  not  compel  the  lessor  to  termi- 
nate the  lease.27 

Bight  of  Mining  Tenants  to  Pollute  Streams. 

433.  Damages  resulting  to  another  from  the  natural  and 
lawful  use  of  his  land  by  the  owner  thereof  are,  in  the  absence 
of  malice  or  negligence,  damnum  absque  injuria.     One  open- 
ing a  coal  mine  in  the  ordinary  and  usual  manner,  may,  upon 
his  own  lands,  drain  or  pump  the  water  which  percolates  into 
his  mine  into  a  stream  which  forms  the  natural  drainage  of  the 
basin  in  which  the  mine  is  situate,  although  the  quantity  of 
the  water  may  thereby  be  increased  and  its  quality  so  affected 
as  to  render  it  totally  unfit  for  domestic  purposes  by  the  lower 
riparian  owners.28 

Liability  for  Manufacturing  Coke  and  Injuring  Crops,  etc.,  of  Ad- 
joining Premises. 

434.  One  who  is  engaged  in  manufacturing  coke  from  coal 
not  mined  by  himself,  but  purchased  at  mines  of  other  per- . 
sons,  will  be  liable  in  damages  for  a  substantial  injury  to  the 
crops  and  soil  of  an  adjoining  farm,  caused  by  the  smoke 
and  vapors  emitted  from  his  ovens.29 

27  Springer  z>.  Gas  Co.,  145  Pa.  430;  Leatherman  v.  Oliver,  151  Pa.  646; 
Ray  v.  Gas  Co.,  138  Pa.  576. 

28  Coal  Co.  v.  Sanderson,  113  Pa.  126. 

29  Robb  v.  Carnegie,  145  Pa.  324. 


MINING    LEASES.  193 

As  to  Whether  or  Not  a  Mining  Lease  has  been  Forfeited  for  Not 
Operating. 

435.  The  acts  and  declarations  of  the  tenant  may  evince 
an  intention  to  abandon  permanently  the  premises  and  opera- 
tion;80 

Bights  to  Make  Openings  to  Beach  Coal. 

436.  A  lease  which  gives  the  right  to  mine,  to  take  out 
all  the  coal  beneath  a  certain  surface  confers  also  the  right  to 
make  all  necessary  openings  to  reach  the  coal.     Tenant 
opened  a  new  shaft  near  a  barn,  whereby  a  spring  was 
destroyed.      Held,  that  the  tenant  could  do  so;  that  if  the 
destruction  of  the  spring  was  a  necessary  incident  of  mining 
under  the  lease,  it  would  be  damnum  absque  infuria.sl 

Agreements  for  Diligence  in  Drilling  and  Working  for  Oil,  etc. 

437.  It  was  held  that  ceasing  operations  for  three  months, 
and  making  no  effort  during  that  period  to  produce  oil,  was 
a  ground  for  forfeiture,32 

In  Agreements  for  Coal  Leases  Time  is  of  the  Essence  of  the  Con- 
tract. 

438.  Held  that  as  an  interest  was  an  oil  and  gas  leasehold, 
liable  to  sudden  changes  in  value,  time  was  of  the  highest  im- 
portance in  dealing  with  it,  and  presumably  the  essence  of  all 
contracts  in  relation  to  its  sale.33 

Belief  Against  Forfeiture  of  an  Oil  and  Gas  Lease  for  Non-Payment 
of  Bent. 

439.  The  lessor  in  an  oil  and  gas  lease  will  not  be  per- 
mitted to  enforce  a  forfeiture  of  the  lease  for  a  delay  of  one 
day  in  the  payment  of  rentals  where  by  his  acts  and  declara- 
tions he  has  lured  the  lessee  into  the  belief  that  a  forfeiture 
will  not  be  enforced  for  so  short  a  delay.84 

30  Karns  v.  Tanner,  66  Pa.  297.       31  Trout  v.  McDonald,  83  Pa.  144. 

32  Kennedy  v.  Crawford,  138  Pa,  561. 

33  Kelly  v.  Marshall,  172  Pa.  396.       34  Steiner  v.  Marks,  172  Pa.  400. 

13 


194  LANDLORD    AND    TENANT. 

Partnership  in  Mineral  Leaseholds. 

440.  A  demise  of  land  for  a  term  of  years,  "with  the  sole 
and  exclusive  privilege,  during  said  period,  of  digging  and 
boring  for  oil  and  minerals,  and  of  gathering  and  collecting 
the  same  therefrom,"  conveys  an  interest  in  the  land,  a  chattel 
real,  but  none  the  less  a  chattel.     Though  such  a  leasehold 
be  held  by  owners  in  undivided  shares,  under  instruments 
made  to  them  in  their  individual  names,  yet  the  property  be- 
ing a  mere  chattel,  the  owners  by  associating  as  partners  in  its 
operation  and  development,  may  convert  it  into  partnership 
assets ;  and  such  association  may  be  established  by  evidence  of 
the  several  admissions  of  the  alleged  partners,  or  the  admis- 
sion of  one  and  the  acts  and  declarations  of  others.     If  one 
partner  assigns  his  interest  in  the  leasehold  without  the 
knowledge  and  assent  of  the  others,  such  assignment  is  sub- 
ject to  the  equity  of  the  other  partners  to  have  the  partner- 
ship debts  then  existing  first  paid  out  of  the  partnership 
assets.35 

Belief  Against  Forfeiture  of  Mining  Leases. 

441.  Where  time  is  not  stipulated  as  essential  and  a  for- 
feiture for  non-payment  of  money,  or  other  matter  that  admits 
of  accurate  and  full  compensation,  is  provided  as  a  mere  pen- 
alty whose  object  is  to  enforce  performance  of  another  and 
principal  obligation,  equity  will  relieve  against  it  and  will  not 
permit  it  to  be  used  for  a  different  and  inequitable  purpose.3* 

A  Lease  for  Exploration  for  Oil  Ceases  when  Exploration  Finished. 

442.  An  oil  lease  contained  a  grant  of  a  right  to  mine  and 
remove  oil  for  a  fixed  period  of  twenty  years  at  a  royalty  of 
one-eighth  of  the  oil  so  mined  and  removed.     Held,  that  the 
right  of  the  lessee  was  to  explore  for  and  determine  the  ex- 
istence of  oil  under  the  land  and  if  none  were  found,  his  right 

35  Brown  v.  Beecher,  120  Pa.  590. 

36  Lynch  v.  Gas  Co.,  165  Pa.  518. 


MINING   LEASES.  195 

ceased  when  the  explorations  were  finished  and  the  lot 
abandoned.37 

Interest  on  Royalties. 

443.  Where  a  coal  lease  provides  for  an  annual  rental,  pay- 
able quarterly,  and  a  royalty  for  coal  mined  in  excess  of  a 
specified  quantity,  and  in  the  course  of  dealing  between  the 
parties  the  lessor  frequently  accepted  royalties  long  after  they 
were  due,  without  demanding  interest  on  the  same  and  finally 
gave  a  receipt  "in  full  payment  for  coal  rent  in  excess  of 
minimum,"  and  it  appears  that  the  receipt  was  not  given 
under  a  mistake  as  to  any  matter  of  fact,  the  representatives 
of  the  lessor  cannot,  after  his  death,  recover  interest  on  the 
royalties  which  had  accrued  and  were  paid  prior  to  the  giving 
of  the  receipt.  Interest  is  a  legal  and  uniform  rate  of  dam- 
ages allowed  in  the  absence  of  any  express  contract  when 
payment  is  withheld  after  it  has  become  the  duty  of  the  debtor 
to  discharge  his  debt.  When  a  balance  of  an  account  was 
paid  without  any  charge  for  interest  it  cannot  be  claimed. 
When  there  is  a  stipulation  for  interest  it  may  be  recovered 
even  after  the  principal  debt  has  been  paid;  but  it  is  other- 
wise when  the  interest  is  recoverable  merely  as  damages  or  as 
an  incident  to  the  debt.  A  receipt  in  full  is  in  effect  a  stated 
account  and  if  interest  is  not  claimed  it  is  waived  by  the  re- 
ceipt.88 

Tenant  Will  Not  be  Compelled  in  Equity  to  Test  Land  for  Oil  or  Gas 
if  there  is  no  Fraud. 


A  bill  in  equity  will  not  lie  by  the  lessor  of  an  oil  and 
gas  lease  against  the  lessee  or  his  assigns  to  compel  the  latter 
to  test  part  of  the  leased  land  not  yet  drilled,  or  upon  his 
failure  to  do  so,  to  surrender  the  land  to  the  lessor,  unless 
it  is  shown  that  the  failure  of  the  lessee  to  drill  amounts  to  a 
fraud  upon  the  rights  of  the  lessor.39 

37  Oil  Co.  v.  Fretts,  152  Pa.  451.        38  Waller  v.  Coal  Co.,  191  Pa.  193. 
39  Young  v.  Oil  Co.,  194  Pa.  243;  Calgan  v.  Oil  Co.,  194  Pa.  234. 


196  LANDLORD  AND  TENANT. 

Covenants  to  Pay  Boyalties  Bun  with  the  Land. 

445.  Covenants  to  pay  royalty  in  an  oil  lease  run  with  the 
land  and  are  binding  upon  the  assignee  who  has  received  the 
production  from  the  wells.40     An  assignment  of  an  oil  and 
gas  lease  in  consideration  of  a  certain  sum  paid  at  the  time  of 
the  assignment  and  the  further  consideration  of  the  sum  of 
$1,000  if  oil  is  found,  etc.,  creates  no  covenant  running  with 
the  land  and  the  assignor  is  not  entitled  to  recover  from  an 
assignee  of  the  assignee  the  $i,ooo.41 

When  Lessee  to   Follow  his  own  Judgment  in  Sinking  Additional 
Wells. 

446.  Where  a  lessee  under  an  oil  and  gas  lease  has  entered 
upon  land  and  sunk  wells  he  is  entitled,  in  determining 
whether  he  shall  sink  additional  wells,  to  follow  his  own  judg- 
ment.    If  that  is  exercised  in  good  faith,  a  different  opinion 
by  the  lessor,  or  the  experts,  or  the  court,  or  all  combined  is  of 
no  consequence,  and  will  not  authorize  a  decree  interfering 
with  him.42 

The  Meaning  of  the  Phrase,  "To  Continue  so  Long  as  Oil  or  Gas 
are  Produced  in  Paying  Quantities." 

447.  Where  a  lease  is  to  continue  as  long  as  oil  or  gas  is 
found  or  produced  in  paying  quantities,  the  phrase  "found  or 
produced  in  paying  quantities"  means  paying  quantities  to 
the  lessee  or  operator.     If  a  well,  being  down,  pays  a  profit, 
even  a  small  one,  over  the  operating  expenses,  it  is  producing 
in  "paying  quantities,"  though  it  may  never  repay  its  cost, 
and  the  operation  as  a  whole  may  result  in  a  loss.43 

Where  an  oil  or  gas  lease  provides  that  the  lessee  shall 
market  gas  if  "found  in  sufficient  paying  quantities  to  justify 
marketing  the  same,"  the  lessee  must  do  so  but  he  will  not  be 
required  to  do  so  at  a  loss,  but  only  at  a  reasonable  profit; 
and  in  determining  whether  it  could  be  so  marketed,  the 
distance  to  market,  the  expense  of  marketing  and  every  cir- 

40  Williams  v.  Short,  155  Pa.  480.       41  Fisher  v.  Guffey,  193  Pa.  393. 
42  Young  v.  Oil  Co.,  194  Pa.  243.        43  Young  v.  Oil  Co..  194  Pa.  243. 


MINING   LEASES.  197 

cnmstance  of  a  similar  kind  should  be  taken  into  considera- 
tion.44 

Necessity  of  Having  Oil  Leases  Recorded. 

448.  Where  the  lessees  in  an  oil  lease  fail  to  put  their  lease 
on  record  and  never  go  into  actual  possession  or  occupation 
of  the  land,  their  title  may  be  cut  out  by  that  of  a  subsequent 
purchaser  for  value  without  notice.46 

Jurisdiction  in  Equity  for  Account  of  Gas,  etc. 

449.  The  lessor  can  have  discovery  and  account  in  equity 
relating  to  his  share  of  the  profits  of  gas,  etc.46 

Bent  may  be  Payable  in  Oil  or  Gas. 

450.  Rent  need  not  be  money,  it  may  be  a  share  in  the 
product,  as  the  share  in  an  oil  lease  or  the  share  of  the  pro- 
ceeds of  the  sale  of  gas  in  a  gas  lease.47 

Liability  of  Assignee  of  an  Oil  or  Gas  Lease  for  the  Payment  of 
Royalties. 

451.  The  assignee  of  an  oil  or  gas  lease  will  be  liable  for  the 
payment  of  royalties  which  accrue  whilst  holding  the  assign- 
ment of  the  lease,  the  covenant  to  pay  royalty  runs  with  the 
land.48 

Owing  to  his  privity  of  contract  with  the  lessor,  a  lessee's 
liability  upon  his  covenants  in  an  oil  and  gas  lease  continues 
after  his  assignment  of  the  lease ;  but  an  assignee  of  the  lease 
being  in  privity  of  estate  only  with  the  lessor,  is  liable  only 
upon  covenants  which  are  broken  while  his  privity  of  estate 
exists.  An  assignee  would  not  be  liable  to  drill  a  well  when 
the  time  for  performance  had  elapsed  before  the  assignment, 
but  the  obligation  of  a  covenant  to  prosecute  the  business 
of  developing  the  land  is  a  continuing  one.49 

44  lams  v.  Gas  Co.,  194  Pa.  72.          45  Aye  v.  Phila.  Co.,  19.3  Pa.  457. 
46  Stone  v.  Oil  Co.,  188  Pa.  602.  47  Stone  v.  Oil  Co.,  188  Pa.  602. 

48  Fennell  v.  Guffey,  155  Pa.  38;    Stone  v.  Oil  Co.,  188  Pa.  602;  Fen- 
nell  v.  Guffey,  139  Pa.  341. 

49  Gas  Co.  v.  Johnson,  123  Pa.  576. 


CHAPTER  XXV. 


PRACTICAL    DIRECTIONS    IN    MATTERS    RELATING   TO    THE 
RENTING    OF    PROPERTY. 


PAGE  199. 


452.  Examination    of    the    prop- 

erty. 

453.  See  what  neighbors  can  do 

in  diminishing  the  value  of 
demised  premises. 

454.  Inquiries  of  landlord  before 

renting. 

455.  False  representations  by  les- 

see. 

456.  See   if   demised   premises   in 

the  city  of  Philadelphia  are 
liable  to  be  taken  for  public 
use. 

457.  Examination   of  the   title   of 

the  landlord. 

458.  Examination    as    to    encum- 

brances. 

459.  See  if  lease  can  be  destroyed 

by  an  orphans'  court  sale. 

460.  See  if  there  is  a  liability  for  a 

distraint  for  taxes. 

461.  Obtaining  rights  for  a  show 

case. 

462.  Obtaining     sign     rights     by 

tenant. 

463.  Provisions  in  case  of  fire  or 

other  casualty. 

464.  Directions  for  making  rents 

certain  for  distraint  and 
possession. 

465.  Directions     in     case     of    an 

underletting. 
198 


SECTION 

466.  Giving   rights   to   tenants   to 

purchase. 

467.  Fixtures  of  tenant  to  be  pro- 

tected in  cases  of  renewed 
leases. 

468.  Making  a  penalty  to  be  paid 

as  rent. 

469.  Directions  in  taking  assign- 

ments of  leases. 

470.  Provisions  prohibiting  parol 

testimony  to  affect  written 
leases. 

471.  Restrictions  as  to  the  use  of 

demised  premises. 

472.  Making  rent  due  in  advance 

by     occurrences     after    the 
lease. 

473.  Providing    against    the    lia- 

bility    of     the     owner     for 
nuisances. 

474.  Prevention  of  defences  being 

waived   by   paying  rent   or 
other  action. 

475.  Prevention    of    the    termina- 

tion of  farm  leases  by  death 
of  tenant. 

476.  Provisions  for  amicable  eject- 

ments. 

477.  Providing  for  distraint  after 

removal  of  tenant. 

478.  Giving  sub-tenants  the  bene- 

fit of  the  exemption  law. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY'. 


199 


SECTION 

479.  Providing  for  surety  in  cases 

of  extensions  of  lease. 

480.  Getting   the    consent    of   the 

surety  to  alter  lease. 

481.  Extension  of  right  to  termi- 

nate lease  to  assignees,  etc. 

482.  Danger    of    landlord    losing 

his  right  to  rent  by  the  non- 
performance  of  an  entire 
contract. 

483.  Cautions  in  preparing  agree- 

ments for  the  extension  of 
term  and  for  options. 

484.  Necessity  of  a  consideration 

for  an  agreement  to  change 
the  terms  of  a  lease. 

485.  Protecting  landlord  in  farm 

leases. 

486.  Making  the  payment  of  taxes, 

charges,  etc.,  as  rent. 

487.  Necessity  of  reading  leases. 

488.  Protecting      fire      insurance 

from  conduct  of  tenant. 

489.  Distinguishing      between      a 

lease  and  sale  in  granting 
mining  rights. 

490.  Necessity  of  a  particular  de- 

scription of  the  extent  of  a 
right  to  mine. 

491.  Ascertaining  if  any  old  min- 

ing leases  are  outstanding. 

492.  Protection  to   landlord  who 

reserves  the  surface  in  a 
lease  to  mine. 

493.  Binding     remainderman     in 

case  of  a  lease  by  tenant  for 
life. 

494.  Necessity    of    recording    oil 

lease  when  tenant  does  not 
take  possession. 

Examination  of  the  Property. 


495.  Necessity    for    having    time 

fixed  for  delivery  of  land- 
lord's share  of  crops. 

496.  Protection      of      parties      in 

agreements  to  pay  for  taxes, 
charges,  assessments,  etc. 

497.  Dangers  in  using  clause  that 

landlord  may  change  terms 
of  lease. 

498.  In    case    of    doubtful    con- 

struction, the  tenant  fa- 
vored. 

499.  Fixing  a  time  for  the  tenant 

to  perform  an  agreement  to 
make  improvements. 

500.  Protecting  landlord's  right  to 

tenant's  fixtures  at  the  end 
of  the  lease  from  levy,  etc. 

501.  If    an    assignee    assigns    his 

lease  and  retains  an  interest 
he  will  remain  liable. 

502.  Necessity  of  having  a  clause 

for  forfeiture  for  a  breach 
of  a  covenant  not  to  assign. 

503.  Guarding  against  the  breach 

of  trifling  covenants  giving 
the  right  to  recover  pos- 
session. 

504.  In  case  a  tenant  agrees  to  use 

or  not  to  use  demised  prem- 
ises for  a  certain  business  or 
purpose. 

505.  Danger    of    there    being    a 

breach  of  a  covenant  not  to 
assign  lease  by  taking  a 
partner. 

506.  Necessity  for  a  description  to 

locate  premises  in  leases  or 
amicable  ejectments. 
506*.  Giving  right  to  distrain  off 
the  demised  premises. 


452.  The  property  proposed  to  be  rented  should,  if  pos- 
sible, be  examined  thoroughly.  As  to  the  parts  thereof 
which  cannot  be  well  examined,  inquiry  should  be  made. 


200  LANDLORD  AND  TENANT. 

The  premises  may  be  out  of  repair  and  in  bad  condition, 
but  these  circumstances  would  be  no  ground  for  a  legal  com- 
plaint by  a  tenant. 

A  tenant  discovered  that  demised  premises  were  wholly  in 
an  unfit  and  uninhabitable  condition,  owing  to  the  defective 
construction  of  the  drains.  Having  been  informed  by  his 
physician  that  it  would  be  dangerous  to  remain  on  the  prem- 
ises, he  removed  therefrom,  and  it  was  held,  that  the  defects 
were  no  defence  to  a  claim  for  rent.1 

A  tenant  leased  premises  to  be  used  as  a  saloon.  After  he 
took  possession  he  discovered  that  they  had  a  bad  reputation. 
In  consequence  of  such  reputation  the  business  people  of  the 
neighborhood  did  not  care  to  enter  them.  It  was  held  that 
the  tenant  was  bound  to  pay  the  rent;  that  there  was  no  rela- 
tion of  confidence  between  landlord  and  tenant;  that  they 
deal  as  strangers;  that  the  tenant  should  have  inquired  into 
the  reputation  of  the  premises;  that  mere  silence  in  regard 
to  a  material  fact,  where  there  is  no  legal  obligation  to  dis- 
close, will  not  avoid  a  contract,  although  it  operates  as  an 
injury  to  the  party  from  whom  the  fact  is  concealed.2 

There  is  no  implied  covenant  that  the  landlord  warrants 
the  leased  premises  to  be  tenantable,  or  that  he  undertakes  to 
keep  them  so,  in  the  absence  of  a  provision  in  the  lease  that 
the  landlord  shall  repair.  A  tenant  having  abandoned  the 
premises,  alleging  that  they  were  not  habitable,  it  was  held 
that  he  was  liable  for  the  rent  for  the  remainder  of  the  year.3 

These  cases,  selected  from  a  large  number,  are  sufficient 
to  show  the  necessity  of  the  examination  and  inquiry  re- 
commended. If  landlord  is  to  repair,  the  lease  should  so 
provide. 

It  is  a  general  practice  for  landlords  to  repair  and  keep 
rented  premises  in  good  condition;  and  this  practice  has  led 
to  a  general  erroneous  belief  that  the  landlord  is  bound  to 

1  Hollis  v.  Brown,  159  Pa.  539. 

2  Twibill  v.  Brown,  17  W.  N.  C.  221. 

3  Reeves  v.  McCormick,  168  Pa.  571. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  201 

conform  to  this  practice.4  The  consequence  has  been  that  a 
large  amount  of  litigation  has  arisen  for  want  of  a  knowledge 
of  the  laws  on  this  subject.  The  landlord  can  agree  in  the 
lease  to  repair  and  keep  in  good  condition,  but  should  make 
an  exception  in  case  of  fire  and  other  casualties,  if  he  should 
need  such  protection. 

See  what  Neighbors  Can  Do  in  Diminishing  the  Value  of  Demised 
Premises. 

453.  A  bill-posting  company  rented  the  roof  and  wall  of 
premises  for  the  display  of  advertisements  on  the  wall  by 
means  of  a  stereopticon;  and  a  neighbor  placed  a  structure 
so  that  it  prevented  advertisements  being  seen  from  the 
streets.     The  lease  was  rendered  practically  valueless,  and 
the  tenant  refused  to  pay  the  rent.     It  was  held  that  the 
landlord  was  not  responsible;  that  the  covenant  for  quiet 
possession  relates  only  to  the  acts  of  the  lessor  and  those 
claiming  under  him,  or  the  holder  of  a  better  title.     This 
case  shows  the  necessity  there  is  for  tenants  to  consider,  be- 
fore renting  property,  what  may  be  done  by  the  owners  of 
adjoining  or  neighboring  properties  to  their  prejudice.5 

Inquiries  of  Landlord  before  Renting. 

454.  The  proposed  tenant  can  question  the  landlord  as  to 
everything  he  desires  to  know  about  the  premises;  and  if  the 
landlord  should  give  any  false  or  fraudulent  answers  to  such 
questions,  they  will  be  a  ground  for  defence.     A  lessor  falsely 
represented  that  he  had  an  offer  of  $20,000  for  a  lease.     The 
real  offer  was  one  of  but  $10,000;  and  the  lessee  obtained  a 
judgment  against  the  lessor  for  $10,000 — the  difference,  in  an 
action  for  deceit.6     A  tenant  contemplating  a  lease  of  prem- 
ises for  the  purpose  of  using  them  as  a  millinery  store,  in- 
quired of  the  landlord  as  to  the  condition  of  the  bulk  show- 

4  Huber  v.  Baum,  152  Pa.  626. 

5  Oakford  v.  Nixon,  39  W.  N.  C.  49. 

6  Guffey  v.  Clever,  146  Pa.  548. 


202  LANDLORD  AND  TENANT. 

windows,  and  was  told  by  him  that  they  had  new  roofs  and 
were  in  perfect  condition.  The  roofs  of  these  windows  were 
not  new,  and  were  in  bad  condition.  It  was  held  that  the 
landlord  was  liable  for  the  deceit.7 

In  case  the  proposed  landlord  is  questioned  as  to  the  con- 
dition of  the  premises  or  other  matters  relating  thereto,  and 
is  mistaken  in  his  answer,  without  any  intention  to  deceive 
or  defraud  the  tenant,  that  tenant  will  have  no  remedy  for 
such  erroneous  answer.  In  case  the  representations  of  a  land- 
lord are  relied  upon  it  will  be  best  to  have  them  in  the  shape 
of  an  agreement  in  a  lease,  or  in  a  paper  executed  therewith. 

False  Representations  by  Lessee. 

455.  The  landlord  can  question  the  tenant  concerning  his 
ability  to  pay  the  rent,  and  other  existing  matters  relating 
to  the  tenancy.     A  lease  may  be  avoided  by  the  lessor  at  his 
option  where  he  was  induced  to  make  the  lease  by  false  rep- 
resentations of  the  lessee.8 

See  if  Demised  Premises  in  the  City  of  Philadelphia  are  Liable  to 
be  Taken  for  Public  Use. 

456.  For  the  city  of  Philadelphia  there  are  plans  to  show 
streets  opened  and  unopened.     Where  a  lease  is  of  property 
in  Philadelphia  in  an  unimproved  neighborhood,  which  lease 
is  to  exist  for  a  considerable  term,  and  improvements  will  be 
erected  by  the  lessee,  it  may  be  well  to  see  whether  or  not 
any  unopened  streets  on  the  city  plan  are   made  to  run 
through  the  demised  premises,  and  what  effect  the  opening  of 
such  streets  will  have  upon  such  improvements.     In  case  any 
improvements  are  built  on  such  unopened  streets,  it  may  be 
that  the  tenant  can  recover  no  damages  from  the  city. 

Examination  of  the  Title  of  the  Landlord. 

457.  See  that  the  proposed  landlord  has  a  good  title.     This 

7  Sacks  v.  Schimmel,  39  W.  N.  C.  452. 

8  Harvey  v.  Gunzberg,  148  Pa.  294. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  203 

should  be  done  especially  in  cases  where  the  lessee  intends 
to  expend  a  considerable  sum  of  money  for  improvements. 
The  tenant  can  question  the  landlord  as  to  his  ownership; 
but  if  he  wishes  to  be  thoroughly  satisfied  and  protected,  he 
should  have  the  title  examined  or  insured.  The  law  implies 
a  covenant  of  the  landlord  that  the  tenant  shall  have  undis- 
turbed possession  of  the  demised  premises  during  the  term, 
but  it  seems  that  such  a  covenant  will  be  an  insufficient  pro- 
tection. 

It  was  held  that  where  a  tenant  was  evicted  during  his 
term  by  the  holder  of  a  paramount  title,  without  fraud  on  the 
part  of  the  lessor,  his  measure  of  damages  was  the  con- 
sideration paid  by  him.  If  he  had  paid  only  the  rent  during 
the  term  of  his  possession,  he  was  entitled  to  only  nominal 
damages.  In  such  case  the  lessee  was  not  entitled  to  re- 
cover the  value  of  the  improvements  for  the  prosecution  of 
his  business — some  of  the  improvements  having  been  erected 
in  pursuance  of  a  covenant  made  by  him  in  the  lease,  and 
which  improvments,  by  the  terms  of  the  lease,  the  lessee  had 
the  right  to  take  down  and  remove  at  the  end  of  the  term.9 

Examination  as  to  Encumbrances. 

458.  See  that  there  are  no  charges  or  encumbrances  which 
may  result  in  a  sheriff's  sale  of  the  premises  and  the  de- 
struction of  the  lease.  As  to  any  judgments,  municipal 
claims,  or  mortgages,  the  lessee  can  procure  certified 
searches,  as  in  the  case  of  purchase  of  a  property.  In  case  of 
a  sheriff's  sale  upon  a  prior  encumbrance,  the  purchaser  can 
give  notice  for  possession,  and  break  the  lease.  There  may  be 
proceedings  on  mortgages,  or  for  arrears  of  ground  rent; 
and  such  proceedings  may  result  in  leases  being  broken  by 
sheriff's  sale.  It  was  held  that  a  tenant  can  tender  payment 
of  the  amount  due  on  a  prior  mortgage,  and  have  the  owner 
of  the  same  restrained  from  selling.10 

9  Lanigan  v.  KHle,  97  Pa.  120. 
10  Hartman  v.  Quay,  r  Chester  Co.  R.  487. 


204  LANDLORD  AND  TENANT. 

In  proceedings  by  sheriff's  sale  under  mortgages,  ground 
rents,  and  even  under  judgments,  the  effect  may  be  to  de- 
stroy what  are  known  as  easements — such  as  rights  of  way, 
and  the  like — created  after  the  recording  of  the  mortgage, 
the  creation  of  the  ground  rent,  or  the  entry  of  the  judgment. 

See  if  Lease  can  be  Destroyed  by  an  Orphans'  Court  Sale. 

459.  Purchasers  at  orphans'  court  sales  will  have  the  same 
right  to  break  leases  that  purchasers  at  sheriff's  sale  have. 
In  case  an  owner  of  the  property  proposed  to  be  rented 
should  be  lately  deceased,  it  ought  to  be  ascertained  whether 
or  not  there  is  any  probability  of  the  property  being  sold  by 
order  of  court  to  pay  the  debts  of  the  decedent.     The  lien  of 
debts  will  expire  at  the  end  of  two  years  from  death  of  lessor 
if  no  statement  is  filed  as  by  law  provided. 

See  if  there  is  a  Liability  for  a  Distraint  for  Taxes. 

460.  In  case  property  in  the  city  of  Philadelphia  is  leased, 
ascertain  whether  or  not  there  are  delinquent  taxes;  for  if 
there  are,  there  will  be  a  liability  of  the  goods  on  the  demised 
premises  to  be  seized  upon  for  the  payment  of  the  taxes. 
Any  taxes,  however,  paid  by  the  tenant  to  the  tax  collector, 
will  be  considered  as  payments  on  account  of  rent. 

Obtaining  Bights  for  a  Show  Case. 

461.  In  renting  a  business  place  it  may  be  desirable  to  have 
the  privilege  of  exhibiting  a  show-case  at  the  street  entrance. 
In  such  case  the  lease  should  provide  for  the  privilege.     As 
to  the  entry,  the  tenant  will  only  have  a  right  of  way.     It 
may  be  desirable  to  have  a  show-case  at  the  front  door,  on 
the  outside.     There  may  be  public  authority  for  the  placing 
of  such  show-cases.     In  that  case  authority  can  be  obtained 
from  the  owner  for  such  outside  show-case  and  the  like.    The 
first  floor  was  rented  to  a  merchant  tailor.     The  second  floor 
was  rented  to  a  photographer.     The  tailor  complained  that 
the  photographer  had  placed  a  show-case  upon  the  pave- 


PRACTICAL   DIRECTIONS    IN    RENTING    PROPERTY.  205 

ment  by  the  side  of  his  door.  It  was  held  that  all  that  any 
of  the  tenants  had  was  an  uninterrupted  passageway  in  com- 
mon with  the  public.  If  the  tailor,  when  he  rented  the 
premises,  had  wanted  to  have  the  door  and  passageway  clear, 
he  could  have  attained  that  end  by  a  provision  in  the  lease; 
provided  the  lease  to  the  photographer  was  not  in  the  way.11 

Obtaining  Sign  Rights  by  Tenant. 

462.  If  a  tenant  desires  to  have  any  rights  to  have  signs 
on  the  walls  he  should  contract  for  them.     Where  a  tenant 
rents  a  floor,  he  rents  the  inside,  and  not  the  outside,  and  he 
has  no  right  to  put  out  a  sign  in  front,  unless  with  the  con- 
sent of  the  landlord.12 

Provisions  in  Case  of  Fire  or  other  Casualty. 

463.  When  a  tenant  rents  an  upper  floor  merely,  and  such 
floor  shall  be  wholly  destroyed  by  fire  or  other  casualty,  with- 
out his  fault,  in  case  there  is  no  covenant  to  rebuild,  the 
lease  ends  and  the  rent  ceases;13  but  this  is  not  so  in  case  a 
tenant  rents  a  whole  property  or  from  the  ground.     He  is 
without  any  protection  in  the  lease;  he  is  liable  to  pay  rent, 
although  the  premises  are  destroyed  by  fire  or  other  casualty, 
and  of  late  it  has  become  customary  to  have  the  tenant  pro- 
tected in  his  lease  against  such  results. 

There  is  a  variety  of  ways  of  having  such  agreements 
made  in  leases.  In  case  of  the  total  destruction  of  the  prem- 
ises by  fire,  without  the  fault  or  neglect  of  the  tenant  or  of 
his  agents  or  servants,  there  may  be  a  provision  that  the  lease 
shall  become  void;  provided,  however,  that  all  back  rent,  and 
the  current  rent  apportioned  up  to  the  date  of  the  fire,  may  be 
recovered  under  and  according  to  the  terms  of  the  lease. 

In  case  of  a  destruction  in  part,  by  fire,  so  that  the  prem- 
ises may  be  repaired  by  the  landlord,  there  can  be  a  provision 

11  Cunningham  v.  Eentrekin,  15  Pa.  C.  C.  R.  183. 

12  Hall  v.  Stewart,  19  W.  N.  C.  129. 

13  Camp  v.  Casey,  7  Pa.  C.  C.  R.  160. 


206  LANDLORD  AND  TENANT. 

that  the  landlord  shall  repair,  and  that  the  tenant  shall  not  be 
required  to  pay  any  rent  during  such  time  as  he  may  be  re- 
quired to  vacate  the  premises  while  repairs  are  being  made. 
In  case,  however,  he  remain  in  possession  of  the  premises, 
and  be  deprived  of  the  use  of  but  a  part  thereof,  he  could  be 
allowed  a  just  proportion  of  the  rent  for  the  parts  not  occu- 
pied during  the  repairs. 

The  most  difficult  transaction  to  provide  for  is  the  renting 
of  a  place  of  business.  If  a  loss  in  part  shall  be  so  great  as  to 
hinder  or  prevent  the  tenant  from  continuing  his  business,  it 
may  be  best  to  agree  that  the  lease  shall  terminate;  but  if 
the  loss  will  not  materially  prevent  such  continuation,  the 
landlord  can  agree  to  repair,  and  the  tenant  can  be  allowed 
a  just  deduction  from  his  rent  for  the  loss  of  the  use  of  the 
parts  destroyed  during  repairs. 

To  protect  the  landlord,  the  rental  value  of  the  parts  de- 
stroyed should  be  the  only  measure  of  the  allowance.  As  to 
the  loss  to  business,  the  tenant  may  not  be  able  to  protect 
himself  by  insurance  further  than  the  loss  of  goods.  There 
may  be  a  loss  in  part,  leaving  to  the  tenant  room  and  con- 
veniences sufficient  to  continue  the  business;  but  he  may  not 
be  able  or  willing  to  do  so,  by  reason  of  a  great  or  entire 
loss  of  stock,  fixtures,  machinery,  etc.;  and  such  conditions 
may  be  made  grounds  for  terminating  the  lease. 

There  may  be  a  lease  of  land  with  several  buildings 
thereon  used  as  a  plant  for  carrying  on  a  manufacturing  busi- 
ness, and  one  of  the  buildings  in  which  a  particular  branch 
of  the  business  shall  be  carried  on  may  be  destroyed  and  the 
tenants  cannot  wait  for  the  repair  or  rebuilding,  and  it  may 
be  to  the  interest  of  the  tenant  for  the  lease  to  terminate, 
and  in  another  case  one  or  several  of  a  number  of  buildings 
may  be  destroyed  but  a  business  can  still  be  carried  on  in 
the  others  until  the  lost  or  damaged  building  or  buildings 
are  rebuilt  or  repaired. 

In  some  cases  an  arbitration  clause  will  be  useful  to  decide 
in  case  of  a  dispute  as  to  the  right  to  remove  and  to  fix  the 


PRACTICAL  DIRECTIONS  IN  RENTING  PROPERTY.        207 

amount  of  the  deduction  for  rent  following  a  partial  loss  and 
continued  occupancy. 

Directions  for  Making  Bents  Certain  for  Distraint  and  Possession. 

464.  The  acts  of  assembly  for  the  recovery  of  the  posses- 
sion of  property  at  the  end  of  the  term  require  that  the  rent 
shall  be  certain.     The  act  for  the  recovery  of  the  possession 
of  rented  properties  for  the  non-payment  of  rent  indicates 
that  it  applies  only  to  cases  where  the  rent  is  certain;  and 
rent  made  certain  is  one  of  the  essentials  for  making  a  dis- 
tress for  rent.     These  requirements  make  it  important  that 
the    rent    shall    be    made    certain.      The    requirement    of 
certainty,  however,  does  not  mean  that  the  rent  must  be  pay- 
able in  money.     It  may  be  paid  in  any  commodity  whose 
value  may  be  accurately  estimated  in  money.     Rent  may  be 
payable  in  the  proportion  of  the  toll  of  a  mill,  or  of  a  pro- 
portion of  iron  or  wheat.14      There  may  be  cases  where 
nearly  the  whole  rent  is  made  payable  in  money,  yet  there 
may  be  a  provision  concerning  some  small  matter  whereby 
the  whole  rent  may  be  rendered  uncertain.     If  rent  is  to  be 
paid  in  produce,  or  from  products  from  mining,  it  may  be 
necessary  to  have  an  accounting  and  settlement;  and  in  im- 
portant leases  there  can  be  provisions  for  such  accounting 
and  settlement  at  certain  periods;  and  in  case  of  the  tenant's 
default  there  can  be  a  provision  for  the  landlord's  annulling 
the  lease  and  recovering  possession  by  amicable  ejectment, 
or  in  case  of  disputes  as  to  accounts  there  can  be  a  provision 
for  arbitration. 

Directions  in  Case  of  an  Underletting. 

465.  In  case  of  an  underletting  the  under-tenant  will  take, 
of  course,  subject  to  the  terms  of  the  lease  of  the  head  land- 
lord, and  subject  to  all  rent  due,  and  which  shall  fall  due,  to 
him.     There  may  be  a  provision  in  the  lease  whereby  the 
first  tenant  cannot  underlet  without  the  written  consent  of 


14  Jones  v.  Gundrim,  3  W.  &  S.  531. 


208  LANDLORD  AND  TENANT. 

the  landlord.  If  there  be  any  such  requirement  in  the  lease 
it  should  be  complied  with.  It  may  happen  that  the  under- 
tenant will  promptly  pay  his  rent  to  the  first  tenant  (his  land- 
lord), but  that  such  landlord  will  not  pay  his  rent  to  the  head 
landlord;  and  the  consequence  may  be  that  the  under-tenant's 
goods  will  be  distrained  upon  for  rent,  although  he  has  paid 
his  rent  to  his  own  landlord. 

In  case  a  lessee  for  years  transfers  his  interest  to  a  third 
person,  with  a  reservation  of  rent,  he  cannot  distrain  for  his 
rent  unless  the  sub-lease  contains  an  express  power  of  dis- 
tress.15 

Giving  Bights  to  Tenants  to  Purchase. 

466.  It  sometimes  happens  that  the  tenant  is  given  an  op- 
tion (or  the  privilege  of  purchasing)  the  demised  premises 
during  the  term  of  the  lease.  In  such  case  it  will  be  well  to 
have  the  terms  of  sale  fully  expressed  in  the  lease,  so  that, 
in  case  of  a  resort  to  a  court  of  equity,  a  decree  for  specific 
performance  can  be  granted.  To  protect  the  right  of  the 
tenant  to  purchase  it  may  be  important  that  notice  should 
be  given  by  having  the  lease  acknowledged  and  recorded. 

If  the  tenant  is  in  possession,  possibly  that  would  oblige 
any  one  purchasing  from  the  landlord  to  inquire  of  the  tenant 
as  to  whether  or  not  there  is  an  agreement  to  purchase  the 
premises. 

In  case  there  is  an  option  in  the  lease  for  the  tenant  to 
purchase,  there  may  be  danger  to  the  landlord,  upon  the  ten- 
ant's exercising  his  option,  of  such  tenant's  being  in  pos- 
session of  the  premises  as  purchaser  before  the  execution  of 
a  deed  and  settlement.  To  avoid  this  result  it  can  be  pro- 
vided in  the  lease  that  the  tenant  shall  remain  as  such  until 
the  execution  and  delivery  of  the  deed  and  the  settlement  for 
the  purchase.18 

Knowledge  of  the  existence  of  a  lease  will  not  relieve  one 

15  Manuel  v.  Reath,  5  Phila.  li. 

16  Newell's  Est.,  100  Pa.  513;  Knerr  v.  Bradley,  105  Pa.  190. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  209 

dealing  with  the  lessor  from  the  duty  of  inquiring  of  the  per- 
son in  possession  whether  he  claims  otherwise  than  under  the 
lease,  the  possession,  apart  from  the  lease,  being  notice  of  the 
possessor's  claim  of  title,  whatever  that  may  be.17 

Fixtures  of  Tenant  to  be  Protected  in  Cases  of  Renewed  Leases. 

467.  If  a  tenant,  at  the  expiration  of  his  lease,  does  not  re- 
move his  fixtures,  they  become  the  property  of  the  landlord. 
If  a  tenant,  at  the  close  of  his  term,  renews  his  lease  and  ac- 
quires a  fresh  interest  in  the  premises,  he  should  take  care 
to  reserve  the  right  to  remove  such  fixtures  at  the  end  of  the 
extended  term.     Where   his   continuance   in   possession   is 
under  a  new  lease,  his  right  to  remove  fixtures  is  determined, 
and  he  is  in  the  same  situation  as  if  his  landlord,  being  seized 
of  land,  together  with  the  fixtures,  had  demised  both  to 
him;18  and  as  this  doctrine  may  be  upheld  by  our  courts, 
it  will  be  well  to  have  the  reservations  recommended. 

Making  a  Penalty  to  be  Paid  as  Bent. 

468.  A  tenant  agreed  to  pay  a  penalty,  in  the  nature  of 
rent,  as  punishment  for  the  breach  of  a  covenant  not  to  carry 
on  business  on  the  demised  premises;  and  this  penalty  was  to 
be  paid  in  addition  to  the  amount  of  rent,  in  equal  monthly 
payments,  at  the  time  of  the  payment  of  the  rent.     It  was 
held  that  the  penalty,  in  fact,  was  not  rent,  and  that  it  could 
not  have  the  incident  of  distress  because  that  incident  per- 
tains only  to  that  which,  in  strict  legal  contemplation,  is  rent. 
There  was  not  a  stipulation  for  a  right  to  distrain.     The  dis- 
tinction between  that  which  was  rent  and  that  which  was 
penalty  was  preserved  throughout  the  agreement.    The  court 
seemed  to  intimate  that  if  the  penalty  had  been  definitely 
named  as  additional  rent,  and  if  a  power  of  distress  had  been 
given,  there  might  have  been  a  right  of  distress.19 

17  Anderson  v.  Brinser,  129  Pa.  376. 

18  Taylor  on  Landlord  and  Tenant  (4th  Ed.),  405. 

19  Latimer  v.  Groetzinger,  27  W.  N.  C.  223. 

14 


210  LANDLORD  AND  TENANT. 

Directions  in  Taking  Assignments  of  Leases. 

469.  In  case  of  the  taking  of  an  assignment  of  a  lease  it 
should  be  ascertained  whether  or  not  there  exists  any  prohib- 
ition against  the  tenant's  assigning  his  lease.     Leases  gen- 
erally require  the  written  consent  of  the  landlord  for  the  ten- 
ant to  assign  or  underlet,  and  if  so,  such  assent  should  be 
obtained. 

Of  course,  in  case  of  the  assignment  of  a  lease,  the  lease 
should  be  examined  by  the  proposed  assignee,  and  the  as- 
signor or  his  landlord  can  be  questioned  as  to  whether  or 
not  there  have  been  any  changes  in  the  terms  of  the  lease. 
Records  can  be  examined,  or  the  tenant  questioned,  to  as- 
certain if  he  has  mortgaged  his  lease  under  acts  of  assembly 
or  otherwise. 

An  assignee  will  only  be  liable  for  the  payment  of  rent,  or 
for  the  performance  of  agreements  during  the  time  he  holds 
the  demised  premises  as  such  assignee. 

To  protect  the  landlord  against  assignments  without  his 
assent,  the  prohibitory  clause  should  be  made  to  extend  and 
apply  to  all  assignments  after  the  first  with  consent,  and  to 
all  assignments  by  operation  of  law,  or  in  any  way  whatever. 

Provisions  Prohibiting  Parol  Testimony  to  Affect  Written  Leases. 

470.  In  negotiations  for  a  lease  it  often  happens  that  con- 
versations take  place  about  the  terms  thereof;  and,  to  prevent 
the  admission  of  such  testimony  there  can  be  a  clause  in  the 
lease  providing  that  parol  testimony  will  not  be  admissible  to 
show  any  agreement,  term  or  provision  not  in  the  lease. 

Restrictions  as  to  the  Use  of  Demised  Premises. 

471.  The  lease  may  provide  that  the  premises  may  be  used 
solely  for  a  certain  purpose,  or  that  the  premises  shall  not  be 
used  for  certain  purposes.     The  tenant  will  have  a  wide  lati- 
tude to  carry  on  business  if  there  is  no  restriction;  and  it 
may  be  a  business  prohibited  in  fire  insurance  policies. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  211 

Making  Bent  Due  in  Advance  by  Occurrences  after  the  Lease. 

472.  There  can  be  a  stipulation  in  the  lease  that  if  the 
lessee  should  become  embarrassed,  make  an  assignment  for 
the  benefit  of  his  creditors,  or  be  sold  out  at  sheriff's  sale,  the 
whole  rent  for  the  balance  of  the  term  shall  become  due  and 
payable  in  advance;  and  the  landlord  can  be  preferred  in  the 
distribution  of  the  proceeds  of  the  sheriff's  sale  of  the  tenant's 
goods  to  the  extent  of  one  year's  rent,  although  the  rent  be 
payable  in  advance,  as  aforesaid.20 

Providing  Against  the  Liability  of  the  Owner  for  Nuisances. 

473.  An  owner  of  real  estate  cannot,  by  leasing  the  same 
to  a  tenant,  avoid  liability  to  a  third  party  for  the  continuance 
of  a  nuisance  on  the  premises,  which,  before  such  leasing,  it 
was  his  duty  to  abate.     A  lessor  out  of  possession  is  liable 
in  damages  to  a  third  party  for  continuance  by  his  tenant  of 
a  nuisance  arising  from  a  well  and  private  sewer  that  were 
either  defectively  constructed  or  out  of  repair  at  the  begin- 
ning of  the  lease.     If  the  tenant  contribute  to  the  nuisance 
by  use  of  the  well  and  sewer,  he  will  be  liable;  but  such 
liability  would  not  relieve  the  landlord  of  his  duty  to  see  that 
his  property,  before  it  passed  out  of  his  possession,  was  in 
such  condition  that  its  use  would  be  uninjurious   to   his 
neighbors.     The  landlord  should  be  careful  that  there  are  no 
nuisances  on  the  property  at  the  time  he  rents — and  in  some 
cases  it  would  be  well  to  have  witnesses  who  have  inspected 
the  premises  and  who  will  testify  as  to  the  condition  of  the 
property  at  the  time  of  the  lease. 

Prevention   of   Defences   being   Waived   by   Paying   Bent    or   other 
Action. 

474.  Where  a  lease  provided  that  a  building  should  be 
completed  by  a  certain  date,  and  the  lessor  failed  to  keep  that 
part  of  his  contract,  and  the  lessee  made  a  large  number  of 
payments  of  rent  after  entering,  without  making  any  claim 

20  Platt  v.  Johnson,  168  Pa.  47. 


212  LANDLORD  AND  TENANT. 

for  deduction  on  account  of  the  delay  in  obtaining  posses- 
sion, he  was  held  to  have  waived  any  right  that  he  had  to 
make  such  a  claim.21  Sometimes  tenants  may  think  it  best 
to  be  protected  against  such  waivers  by  their  actions,  and  in 
paying  rent,  payments  may  be  made  under  protest. 

Prevention  of  the  Termination  of  Farm  Leases  by  Death  of  Tenant. 

475.  There  is  a  conflict  of  authority  as  to  whether  or  not  a 
farm  lease  will  terminate  with  the  death  of  the  tenant;  and  if 
that  is  not  the  intention  there  can  be  a  provision  in  the  lease 
to  the  contrary. 

Provisions  for  Amicable  Ejectments. 

476.  For  the  protection  of  the  landlord  it  has  become  com- 
mon to  have  an  agreement  in  the  lease  for  the  entry  of  a  judg- 
ment in  ejectment  for  the  recovery  of  the  demised  premises 
by  the  landlord,  in  case  the  tenant  makes  default  in  the  pay- 
ment of  rent  or  breaks  .any  of  his  agreements.      Such  an 
agreement  will  be  of  great  benefit  to  the  landlord,  as  other- 
wise legal  proceedings  may  be  necessary  to  recover  posses- 
sion, whereby  there  may  be  great  delay  and  troublesome 
litigation. 

According  to  the  decisions,  the  landlord  may  lose  his  right 
to  such  a  provision  for  amicable  ejectment  for  non-payment 
of  rent  if  he  has  been  in  the  habit  of  giving  time  to  the  tenant 
to  pay  the  rent  after  it  is  due,  and  thereby  leading  the  tenant 
to  believe  that  a  forfeiture  will  not  be  insisted  upon.  To 
avoid  such  a  result,  the  lease  can  provide  that  in  case  the  land- 
lord shall  not  demand  or  collect  his  rent  when  due,  or  in  case, 
by  words  or  actions,  he  shall  have  given  additional  time  to 
the  tenant  to  pay  his  rent,  any  such  circumstances  or  actions 
shall  not  be  set  up  as  a  defence  against  the  amicable  suit  and 
judgment  in  ejectment,  and  that  the  landlord  may  institute 
such  suit  and  obtain  such  judgment  without  notice  to  the 
tenant. 

21  Murphy  v.  Marshall,  39  W.  N.  C.  446. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  213 

In  entering  the  suit  and  judgment,  that  tenant  alone  who 
has  signed  the  lease,  or  his  assignee,  if  right  is  given  to  the 
assignee,  should  be  made  a  party  defendant.  If  he  alone  is 
made  a  party,  the  sheriff  under  his  execution  can  put  an 
under-tenant,  and  all  persons  claiming  any  right  to  posses- 
sion under  the  tenant,  out  of  possession.  There  should  be  a 
provision  that  the  clause  in  question  shall  apply  to  the  heirs, 
executors,  administrators  and  assigns  of  the  parties. 

There  was  an  amicable  action  in  ejectment  and  confession 
of  judgment.  The  record  showed  as  a  ground  for  the  for- 
feiture of  the  lease  that  the  tenant  did  not  pay  the  rent.  The 
judgment  was  stricken  off,  one  of  the  reasons  being  "that 
there  being  no  place  named  in  the  lease  for  the  payment  of 
the  rent,  the  landlord  was  bound  to  be  on  the  premises  by 
himself,  or  his  agent,  on  the  day  or  days  when  the  rent  fell 
due,  ready  to  receive  the  same,  and  if  he  allowed  these  days 
to  pass,  then,  before  he  could  declare  a  forfeiture,  he  must 
demand  the  rent  of  the  defendant  in  person."  22 

To  avoid  any  questions  like  this  the  lease  can  provide  that 
the  rent  shall  be  paid  to  the  lessor  at  his  residence,  place  of 
business,  or  at  any  place  the  lessor  may  designate. 

Where  a  lessee  for  years  holds  over  after  the  expiration 
of  his  term,  he  is  tenant  from  year  to  year,  subject  to  all 
the  covenants  and  stipulations  in  the  original  lease,  so  far  as 
they  are  compatible  with  a  yearly  holding;  but  a  warrant  of 
attorney  for  a  confession  of  judgment  in  ejectment  for  non- 
payment of  rent,  etc.,  contained  in  the  lease  limited  to  the 
former  year  is  not  applicable  to  the  new  situation  unless  made 
so  by  express  agreement.23  This  case  is  not  like  McBrier 
v.  Marshall,  126  Pa.  390,  in  which  there  was  an  option  to 
hold  for  an  additional  term. 

Leases  generally  provided  for  a  continuation  of  the  term 
in  case  of  a  holding  over,  but  in  case  of  renting  for  only  a 

22  Hughs  v.  Lillibridge,  8  Pa.  Dis.  R.  358. 

23  Hughs  v.  Lillibridge,  8  Pa.  Dis.  R.  358.  . 


214  LANDLORD  AND  TENANT. 

certain  term  it  will  be  well  to  agree  that  the  rights  and 
remedies  to  the  ejectment  shall  extend  to  any  renting  what- 
ever,  by  implication  or  otherwise,  after  the  expiration  of  the 
term. 

It  will  be  well  for  the  lease  to  provide  for  the  filing  of 
a  copy  of  the  lease  in  court  in  lieu  of  filing  the  original  lease. 

Providing  for  Distraint  after  Removal  of  Tenant. 

477.  In  case  the  tenant  removes  his  goods  from  the  de- 
mised premises  clandestinely,  they  can  be  followed  and  dis- 
trained upon  for  thirty  days,  as  provided  by  an  act  of  as- 
sembly; but  in  case  there  is  no  clandestine  removal  of  the 
goods,  they  cannot  be  followed  and  distrained  upon.     Hence 
it  is  important  to  have  a  clause  inserted  in  the  lease  that  in 
case  the  tenant  shall  remove  any  of  his  goods  from  the  prem- 
ises, whether  clandestinely  or  not,  they  may  be  distrained 
upon  wherever  found,  say  within  thirty  days  after  removal. 

Giving  Sub-Tenants  the  Benefit  of  the  Exemption  Law. 

478.  There  was  a  provision  against  a  tenant  assigning  or 
sub-letting  without  the  consent  of  the  landlord,  and  it  was 
held  that  a  sub-tenant  of  a  tenant,  who  has  not  been  recog- 
nized as  such  by  the  landlord,  cannot  claim  the  benefit  of  the 
exemption  law,  as  against  a  distress  for  rent.24     In  view  of 
this  decision  it  may  be  to  the  interest  of  under-tenants  to  get 
the  consent  and  approval  of  head  landlords  before  leasing, 
and  that  they  shall  have  the  same  rights  to  the  exemption 
law  as  their  landlords  have.     And  lessees,  in  order  to  pro- 
tect under-tenants,  may  provide  in  their  leases  that  the  right 
to    the    exemption    shall    extend    to    assignees    or    under- 
tenants who  may  become  such  with  the  consent  of  the  head 
landlords. 

Providing  for  Surety  in  Cases  of  Extensions  of  Lease. 

479.  In  case  of  a  person  becoming  surety  for  a  tenant, 

24  Rosenberg  v.  Hallowell,  35  Pa.  369. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  215 

there  is  danger  of  the  surety's  denying  his  liability  for  ex- 
tended periods,  upon  giving  notice.  To  avoid  such  results 
the  surety  can  be  made  to  agree  that  his  liability  as  surety 
shall  extend,  not  only  to  the  original  term,  but  to  any  con- 
tinuations or  extensions  thereof  under  or  by  reason  of  the 
lease. 

A  lease  can  provide  that  all  renewals  or  extensions  shall 
be  upon  the  condition  that  the  surety  consents  to  be  bound 
for  the  same. 

Getting  the  Consent  of  the  Surety  to  Alter  Lease. 

480.  In  case  of  an  alteration  of  the  terms  of  a  lease  without 
the  consent  of  the  surety,  he  may  be  discharged.    Such  con- 
sent had  better  be  in  writing. 

Extension  of  Bight  to  Terminate  Lease  to  Assignees,  etc. 

481.  Have   a   right   to   terminate   a   lease   to   extend   to 
grantees,  assignees,  devisees,  heirs,  executors,  administra- 
tors, etc.,  if  so  intended. 

There  was  a  reservation  in  the  lease  by  the  lessor  of  the 
right  to  terminate  the  lease  at  any  time  by  giving  thirty  days' 
notice.  It  was  held  that  such  reservation  did  not  inure  to 
the  benefit  of  the  lessor's  grantees,  there  being  no  provision 
to  extend  this  right  to  the  grantees  or  assigns,  as  a  number 
of  other  agreements  in  the  lease  had  been  made  to  extend 
to  grantees  and  assigns,25 

Danger  of  Landlord  Losing  his  Bight  to  Bent  by  the  Non-Perform- 
ance of  an  Entire  Contract. 

482.  Landlords,  in  renting  property,  should  be  careful,  in 
case  they  promise  to  do  something  to  the  demised  premises 
in  the  future,  not  to  make  their  contract  for  performance 
entire.    The  plaintiff  leased  a  warehouse  to  the  defendants  at 
an  annual  rent  of  $1,500,  payable  quarterly;  at  the  time  of  the 
making  of  the  contract  he  delivered  to  them  possession  of  the 

25  McClintock  v.  Loveless,  5  Pa.  Dis.  R.  417. 


216  LANDLORD  AND  TENANT. 

three  lower  stories,  and  agreed  to  give  them  possession  of  the 
cellar  and  of  the  fourth  and  fifth  stories  on  demand;  he  re- 
fused to  deliver  possession  thereof,  and  the  defendants  were 
compelled  for  want  of  room  to  abandon  the  premises  and  to 
rent  another  house  for  the  transaction  of  business.  The 
plaintiff  sued  for  use  and  occupation.  The  court  held  that  the 
contract  was  entire,  and  being  so,  there  could  be  no  recovery 
unless  complete  performance  had  been  prevented  or  waived 
by  the  party  entitled  to  demand  it.26  To  the  same  effect  is 
Block  v.  Dovvling.27 

Cautions  in  Preparing  Agreements  for  the  Extension  of  Term  and 
for  Options. 

483.  In  case  there  is  a  lease  for  a  certain  term  the  tenant 
can  go  out  of  the  demised  premises  and  the  landlord  may 
enter  without  notice.  Even  in  a  case  of  a  tenancy  from  year 
to  year  it  has  been  held  that  the  tenant  can  go  out  at  the 
end  of  any  year  without  notice.  For  mutual  convenience 
leases  often  contain  the  following  or  a  similar  form : 

"And  it  is  hereby  mutually  agreed,  that  either  party  hereto 
may  determine  this  lease  at  the  end  of  said  term,  by  giving 
the  other  notice  thereof,  at  least  prior  thereto,  but 

in  default  of  such  notice,  this  lease  shall  continue  upon  the 
same  terms  and  conditions  as  are  herein  contained,  for  a 
further  period  of  and  so  on  from  to 

unless  or  until  terminated  by  either  party  hereto  giving  to 
the  other  notice  for  removal  previous  to  the  ex- 

piration of  the  then  current  term." 

As  questions  may  arise  as  to  whether  the  provisions  as  to 
notice  are  to  apply  not  only  to  the  present  but  to  future 
terms,  it  will  be  well  if  such  is  the  intention  to  have  the  notice 
to  terminate  to  expressly  apply  not  only  to  the  original  term 

26  McClurg  v.  Price,  59  Pa.  420. 
.     27  Block  v.  Dowling,  7  Pa.  Dis.  R.  261. 


PRACTICAL   DIRECTIONS    IN    RENTING    PROPERTY.  217 

but  to  the  termination  of  the  second  term,  and  to  each  future 
additional  or  extended  term  there  may  be,  express  or  im- 
plied. It  sometimes  occurs  that  a  tenant  is  given  an  option 
to  continue  for  an  extended  term,  certain  or  uncertain,  and  it 
appears  that  care  should  be  exercised  in  the  language  of  the 
lease  giving  such  option. 

The  Supreme  Court  affirmed  a  judgment  on  the  opinion 
of  the  court  below.  In  that  opinion  it  was  said :  "The  lease 
was  to  continue  'for  the  term  of  one  year  with  the  privilege 
of  three  years  from  the  first  day  of  April,  1885,  at  the  rent 
of  two  hundred  and  four  dollars  per  year.'  We  interpret  this 
language  to  mean  that  the  lessee  could  remain  one  year  or 
from  year  to  year,  not  exceeding  three  years.  A  privilege 
to  remain  three  years  must  include  the  privilege  to  remain 
two  years.  The  whole  necessarily  includes  the  parts.  We 
must  construe  the  lease  in  favor  of  the  tenant  rather  than  in 
favor  of  the  lessor.  In  the  absence  of  anything  to  the  con- 
trary the  tenant,  by  giving  due  notice,  such  as  was  given,  had 
the  right  to  terminate  the  lease  at  the  end  of  the  second  year; 
he  exercised  the  option  secured  to  him  under  the  lease.  The 
lease  fixed  the  rent  at  two  hundred  and  four  dollars  per  year, 
indicating  a  term  from  year  to  year  rather  than  a  term  for 
three  years.  The  landlord  cannot  complain,  for  he  received 
due  notice  of  the  intention  to  quit.  It  is  argued  that  this 
interpretation  destroys  the  mutuality  of  the  contract,  but  we 
must  remember  that  the  contract  starts  out  with  granting  a 
privilege  in  favor  of  the  tenant."  28 

In  case  a  term  can  be  extended  at  the  option  of  the  tenant 
it  is  suggested  that  there  can  be  the  usual  clause  that  either 
party  may  terminate  the  lease  on  notice,  say,  on  three 
months'  written  notice  if  a  yearly  tenancy,  and  that  the  ten- 
ant must  give  notice,  say,  three  months  and  one  week  before 
the  end  of  the  term,  whether  or  not  he  exercises  the  option. 
That  if  the  option  is  not  exercised  the  tenancy  shall  run  on 

28  Gillion  v.  Finley,  22  W.  N.  C.  124  (s.  c.). 


218  LANDLORD  AND  TENANT. 

from  year  to  year  unless  either  party  gives  three  months' 
notice  to  terminate  before  the  end  of  the  term,  as  provided  in 
the  other  clause.  The  tenant  may  not  exercise  an  option  for 
two  years,  but  he  may  be  willing  to  remain  for  another  year  as 
a  tenant  from  year  to  year,  and  so  on,  and  the  landlord  may 
also  be  willing,  and  a  provision  can  consistently  be  made  for 
the  running  on  of  a  tenancy  from  year  to  year  if  the  option  is 
not  exercised.  Modern  cases  show  considerable  litigation  as 
to  agreements  for  extending  leases  and  the  exercise  of 
options,  and  it  will  be  well  for  the  practitioner  to  carefully 
examine  these  cases  and  to  steer  clear  of  any  mistakes.29 

A  lease  provided  "that  if  the  said  lessee  should  continue  on 
the  premises  after  the  termination  of  the  above  contract,  then 
the  same  is  to  continue  in  force  for  another  year,  and  so  on 
from  year  to  year,  unless  either  party  shall  give  legal  notice 
in  writing  to  the  other  party  of  his  intention  to  terminate  said 
letting."  It  was  held  that  as  a  tenant  from  year  to  year  is 
not  bound  to  give  notice  of  his  intention  to  quit  at  the  end 
of  the  current  term,  the  tenant,  in  this  case,  was  not  bound  to 
give  notice  under  the  foregoing  clause.  Some  printed  leases 
have  the  word  "legal"  inserted.  It  will  be  well  to  see  that  the 
word  is  omitted  to  guard  against  the  above  decision.30 

Necessity  of  a  Consideration  for  an  Agreement  to  Change  the  Terms 
of  a  Lease. 

484.  An  agreement  between  landlord  and  tenant,  made 
during  the  term,  to  modify  the  lease,  is  not  binding  until  the 
end  of  the  term  without  some  new  consideration;  but  it  may 
be  valid  for  anytime  subsequent  to  the  expiration  of  the  term; 
and  the  continuance  of  the  tenant  in  possession  paying  the 
rent  agreed  upon  would  be  sufficient  consideration  for  the 
modification  as  to  the  subsequent  time.  Such  a  contract  may 

29  Lipper  v.  Bouve,  41  W.  N.  C.  566;  Harding  v.  Seeley,  148  Pa.  20; 
Ashhurst  v.  Phonograph  Co.,  166  Pa.  357;  Megargee  v.  Longaker,  10  Pa. 
Super.  Ct.  R.  491 ;  Rohbock  v.  McGargo,  6  Pa.  Super.  Ct.  R.  134. 

30  Brown  v.  Brightly,  14  W.  N.  C.  407. 


PRACTICAL   DIRECTIONS    IN    RENTING    PROPERTY.  219 

be  implied  by  the  acts  of  the  parties.  Even  if  it  be  an  ex- 
press agreement,  not  binding  in  law,  but  supposed  to  be  so 
by  the  parties  and  carried  out  by  them ;  and  if  a  new  year  be 
entered  upon,  under  the  supposition  and  intention  that  it  is 
and  should  be  mutually  binding,  such  agreement  will  be  en- 
tirely valid.81  In  case  of  an  agreement  as  to  the  amount  of 
rent  and  other  matter  during  the  term,  care  should  be  exer- 
cised to  have  some  consideration  expressed. 

Protecting  Landlord  in  Farm  Leases. 

485.  In  farm  leases  it  may  be  important  for  the  landlord  to 
have  agreements  incorporated  in  the  lease,  as  to  the  manage- 
ment of  a  farm  by  the  tenant.  Notwithstanding  there  may  be 
a  custom  concerning  such  management,  it  would  be  well  to 
understand  distinctly  what  the  tenant  is  or  is  not  to  do  in 
the  way  of  farming.  For  example,  there  may  be  the  usual 
clause  against  the  tenant's  removing  things  necessary  for  the 
nourishment  of  the  land,  against  plowing,  or  for  planting  of 
crops  and  manuring. 

Making  the  Payment  of  Taxes,  Charges,  etc.,  as  Bent. 

486.^  In  case  the  tenant  is  required  by  the  lease  to  pay 
taxes,  water  rent,  for  light,  or  for  power  and  the  like,  it  will 
be  well  to  have  a  provision  that  such  payments  shall  be  paid 
as  rent,  and  that  they  can  be  treated  and  distrained  for  as 
rent.  It  may  be  well  to  have  fixed  charges  for  such  pay- 
ments, with  fixed  times  of  payment,  so  that  the  landlord  can 
distrain  for  certain  amounts  in  such  cases;  but  where  this  is 
not  done,  the  maxim  that  "that  is  certain  which  can  be  ren- 
dered certain"  will  apply. 

Necessity  of  Beading  Leases. 

487.  Before  leases  are  executed,  the  parties  should  read 
them  or  have  them  read. 

It  has  been  said :  "If  a  party  who  can  read  will  not  read  a 

31  Walker  v.  Githens,  32  W.  N.  C.  505. 


220  LANDLORD  AND  TENANT. 

deed  put  before  him  for  execution;  or  if,  being  unable  to  read, 
will  not  demand  to  have  it  read  or  explained  to  him,  he  is 
guilty  of  supine  negligence.  This  is  undoubtedly  true  where 
the  parties  stand  on  an  equal  footing  and  deal  at  arms' 
length." 

Protecting  Fire  Insurance  from  Conduct  of  Tenant. 

488.  Sometimes  insurances  are  affected  by  renting  to  ten- 
ants, or  by  tenants  making  alterations  or  putting  in  or  using 
things  prohibited  in  the  policy. 

A  shoe  store  was  changed  into  a  dry  goods,  hardware  and 
grocery  store,  in  which  a  keg  of  powder  was  placed.  The 
occupation  of  grocer  and  storage  of  gunpowder  were  pro- 
hibited. There  was  a  loss  by  a  fire  in  the  grocery  store,  and 
an  explosion  of  the  powder.  It  was  held  the  insurance 
company  was  not  liable;  that  it  was  not  material  that  the 
landlord  did  not  know  that  his  tenant  kept  gunpowder;  that 
forbidden  articles  in  a  policy  of  insurance  would  be  of  no 
practical  importance  if  the  effect  of  keeping  them  depended 
upon  the  landlord's  knowledge  that  they  were  kept  by  his 
tenant.32 

In  renting  properties  for  business,  or  consenting  to  assign- 
ments, or  an  underletting,  it  would  often  be  well  to  examine 
the  policies  of  insurance  to  see  if  the  business  of  the  proposed 
tenant  is  prohibited.  If  the  business  is  found  to  be  so,  per- 
haps the  insurance  companies  will  allow  the  business  for  an 
additional  premium.  It  would  also  be  well  to  insert  an 
agreement  of  the  lessee,  that  he  will  not,  on  penalty  of  instant 
forfeiture,  occupy  or  permit  the  demised  premises  to  be  oc- 
cupied excepting  for  a  particular  business,  and  that  he  will 
not,  knowingly,  do  or  commit,  or  willingly  suffer  to  be  done 
•or  committed,  any  act  or  thing  contrary  to  the  conditions  or 
stipulations  of  the  policies  of  insurance  on  the  premises.  Of 
course,  it  will  have  to  be  proved  that  the  tenant  had  notice  in 

32  Fire  Assn.  v.  Williamson,  26  Pa.  196. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  221 

some  way  of  such  conditions  and  stipulations.  Unless  some- 
thing of  this  kind  is  done,  a  tenant,  assignee,  or  any  under- 
tenant, may,  at  any  time,  imperil  the  insurance. 

Distinguishing    Between    a    Lease    and    Sale    in    Granting    Mining 
Bights. 

489.  In  Pennsylvania  there  has  been  much  confusion  and 
litigation  under  the  laws  relating  to  mining  rights  or  leases. 
It  has  sometimes  been  a  difficult  question  to  determine 
whether  there  is  a  sale  of  ore  in  a  mine,  or  whether  there  is 
a  lease.  In  such  instances  the  question  becomes  important 
because  of  the  differences  between  a  sale  and  a  lease. 

If  there  is  a  sale,  rights  are  given  to  the  purchaser  similar 
to  those  he  obtains  under  title  as  the  purchaser  of  a  piece  of 
land.  Ore  or  coal  is  a  portion  of  the  land,  and  not  produce. 
A  purchaser  may  hold  the  right  to  ore  as  to  a  piece  of  land, 
yet  another  person  may  own  the  soil  above.  In  case  of  a  sale, 
there  should  be  a  deed  executed  by  the  proper  parties,  and 
recorded,  so  as  to  give  notice;  although  the  purchaser  being 
in  possession  of  the  mine  possibly  may  give  notice.  If  full 
ownership  is  intended,  the  word  "heirs"  had  better  be  used. 
In  case  of  a  conveyance  of  the  ore,  the  title  to  it  will  belong 
wholly  to  the  purchaser,  as  real  estate.  If  royalties  or  other 
amounts  are  to  be  paid  in  the  future,  they  will  be  in  the  shape 
of  purchase-money.  In  case  the  vendor  shall  die,  the  mine  or 
ore  will  not  belong  to  his  estate.  The  unpaid  purchase- 
money  will  not  go  to  the  heir  or  devisee  as  rent,  but  to  the 
executor  or  administrator,  like  any  debt  due  to  the  estate. 
Testators  may  happen  to  die  under  the  impression  that  they 
own  the  mine,  and  that  there  was  a  lease.  In  consequence, 
blunders  may  be  made  in  wills  for  which  there  will  be  no 
remedy. 

If  there  is  a  lease  the  landlord  will  retain  the  ownership  of 
the  coal  or  ore  until  it  is  separated  by  mining;  and  he  will 
have  what  is  called  a  reversion — that  is,  the  right  to  the  pos- 
session of  the  property  at  the  end  of  the  term  of  the  lease. 


222  LANDLORD  AND  TENANT.  - 

In  case  the  lessor  dies,  the  rent  or  royalty  falling  due  after 
his  death  will  go  to  his  heir  or  devisee,  and  not  to  his  ex- 
ecutor or  administrator.  In  case  of  a  sale,  the  purchaser  will 
pay  taxes  on  the  mine;  but  in  case  of  a  lease,  the  lessor  will  be 
liable  to  pay  the  taxes. 

In  case  a  person  bargaining  for  a  mining  property  is  to 
have  an  unlimited  right  to  take  all  of  the  coal  or  ore  for  a 
price,  there  will'  be  a  sale.  The  principle  leading  to  such  a  re- 
sult seems  to  be  that  where  there  is  the  right  to  take  the 
whole  product  of  the  piece  of  land,  the  effect  is  the  same  as 
if  there  was  an  express  grant  of  the  land.  What  has  led  to 
mistakes  and  disastrous  results  is  this :  that  there  can  be  a 
sale  or  grant  of  coal  in  place,  although  there  may  be  nearly 
every  indication  of  a  lease.  The  document  may  be  entitled 
a  lease;  the  words,  "demised"  or  "rented,"  may  be  used;  there 
may  be  a  term  of  years;  there  may  be  amounts  to  be  paid 
called  "rent";  there  may  be  provisions  against  assigning  or 
underletting,  and  of  forfeiture  for  non-payment  and  the  like 
— and  yet,  because  of  an  indication  that  the  grantee  is  to  pay 
for  all  of  the  coal,  whether  mined  or  not,  there  will  be  a  sale, 
and  often  so  contrary  to  the  real  intention  of  the  vendor. 

If  there  be  a  provision  in  the  lease  that  the  grantee  shall 
mine  a  certain  amount  of  coal  per  annum,  and  if  he  do  not, 
that  he  shall  pay  a  certain  amount  of  money  per  annum,  that 
circumstance  may  result  in  a  sale.  Such  clauses  are  prob- 
ably put  in  what  are  supposed  to  be  leases  as  a  spur  to  urge 
a  supposed  tenant  to  diligence  in  mining.  In  order  to  avoid 
mistakes  in  drawing  grants  or  leases  of  mining  rights,  the 
following  suggestions  are  made : 

In  case  the  owner  of  a  mine,  after  explanation,  should  see 
fit  to  sell  and  convey  all  of  the  coal  or  ore  in  a  mine,  let  there 
be  a  deed  made  in  the  manner  used  when  a  piece  of  land  is 
conveyed,  the  words,  "grant,"  "bargain"  and  "sell,"  etc., 
being  used  instead  of  such  words  as  "leased,"  "demised,"  etc. 
Let  the  deed  express  the  fact  that  it  is  the  intention  to  sell 
the  mineral,  and  not  to  lease  it.  The  coal  or  ore  can  be 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  223 

granted  for  a  sum  of  money  payable  at  once  or  in  instal- 
ments, or  there  can  be  a  provision  that  the  purchaser  shall 
mine  continuously  and  pay  a  certain  proportion  of  the  pro- 
duct of  the  mine  as  purchase-money.  The  deed  should  be 
signed  by  the  proper  parties,  exactly  as  in  the  case  of  con- 
veyance of  real  estate.  Married  women  should  join  in  the 
deed  with  their  husbands;  minors'  interests  should  be  sold 
under  order  of  the  orphans'  court;  the  deed  should  be  ac- 
knowledged and  recorded. 

If  life  tenants  hold  title,  and  the  mine  is  not  opened,  they 
themselves  will  have  no  right  to  open  mines,  and,  con- 
sequently, they  cannot  convey  or  lease  to  others  any  right 
to  open  mines. 

The  question  has  arisen  in  the  mind  of  the  author  as  to 
whether  or  not  the  vendor  will  be  secured  the  payment  of  the 
purchase-money.  The  payment  of  the  purchase-money  can 
be  charged  upon  the  mine  in  the  deed  of  conveyance;  and,  in 
such  case,  a  sale  of  the  mine  can  be  made  to  secure  the  charge 
by  equitable  ejectment  or  by  judgment  against  the  owner  of 
the  mine.  It  is  not  customary  to  charge  a  mine  expressly 
with  the  payment  of  the  purchase-money,  and  it  may  be 
doubtful  whether  or  not  there  will  be  any  charge  without 
such  expression.  The  best  way  to  secure  purchase-money 
would  probably  be  by  a  purchase-money  mortgage.  Such 
mortgage  may  be  made  to  bind,  not  only  coal  or  ore  in  place, 
but  minerals  severed  by  mining.  As  to  coal  or  ore  severed 
by  mining,  however,  there  may  be  doubts  as  to  whether  the 
mortgage  would  not  be  void  as  to  creditors,  although  it  may 
be  good  between  the  parties. 

If  there  is  to  be  a  lease  of  coal  or  ore,  then  the  paper  should 
be  styled  a  lease,  and  should  have  all  of  the  features  or  indica- 
tions of  one;  and,  particularly,  there  should  be  a  term,  leaving 
a  reversion  in  the  landlord.  The  lease  can  expressly  declare 
that  there  is  to  be  no  sale  or  conveyance  of  the  coal,  but 
only  a  lease.  The  lease  can  also  declare  that  the  owner- 
ship of  the  coal  or  ore  in  place  shall  remain  the  property  of 


224  LANDLORD  AND  TENANT. 

the  landlord  until  severed  by  mining.  Above  all,  the  lease 
should  guard  against  granting  to  the  tenant  all  the  minerals, 
or  in  requiring  him  to  pay  in  any  way  for  all  the  minerals. 
If  the  rent  is  to  be  paid  in  the  form  of  royalties,  it  will  be 
best  to  have  the  payments  made  from  a  portion  of  the  coal 
mined.  The  lease  can  provide,  as  usual,  that  the  tenant  shall 
mine  continuously;  and  there  can  be  a  clause  of  forfeiture  for 
failure  to  do  so. 

If  the  land  is  unoccupied  by  the  lessor,  and  only  valuable 
for  mining,  then  it  will  be  well  to  lease  the  land  with  the 
right  to  mine.  It  was  held  that  in  order  to  constitute  a  lease, 
it  is  not  necessary  that  the  lessee  should  have  an  interest  in 
the  surface.33  In  the  mining  districts  leases  of  lands  for 
mining  purposes  are  restricted  to  the  use  of  only  so  much 
of  the  surface  as  will  be  necessary  for  mining  purposes,  with 
the  right  in  the  lessor  to  use  the  remainder  of  the  surface. 
An  agreement  that  a  person  shall  for  a  term  enter  on  the 
land,  dig  ore,  erect  buildings,  etc.,  and  pay,  say  fifty  cents  a 
ton,  for  all  ore  mined,  amounts  to  a  lease. 

The  following  cases  draw  distinctions  between  a  sale,  lease 
and  license  for  the  purpose  of  obtaining  minerals: 

There  was  a  demise  of  land  for  a  term  of  years  with  the 
sole  and  exclusive  right  and  privilege,  during  said  period,  of 
digging  and  boring  for  oil  and  other  minerals,  and  of  gather- 
ing and  collecting  the  same  therefrom.  The  Supreme  Court 
said :  "The  contract  referred  to  was  a  lease  of  the  lands  for  a 
specified  term  and  for  a  particular  purpose,  at  a  fixed  rent 
or  royalty  reserved  out  of  the  production."  It  was  "not  a 
mere  license,  as  in  Funk  v.  Haldeman,  53  Pa.  229,  for  in  that 
case  the  words  of  the  grant  amounted  neither  to  a  lease  nor  a 
sale  of  the  land,  nor  of  any  of  the  minerals  in  the  land. 
Funk's  right  was,  therefore,  declared  to  be  a  license  to  work 
the  land  for  minerals,  a  license  coupled  with  an  interest  which 
the  licensor  could  not  revoke.  Nor  does  the  act  of  February 

33  Sheets  v.  Allen,  89  Pa.  47. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  225 

3,  1882,  import  a  sale  of  all  the  coal,  gas  and  other  minerals  in 
the  land,  absolutely;  the  cases  of  Caldwell  v.  Fulton,  31  Pa. 
476;  Sanderson  v.  City  of  Scranton,  105  Pa.  469,  and  others 
involving  the  same  principle,  do  not,  therefore,  have  any 
application."  34 

There  was  an  agreement  whereby  one  gave  a  defendant 
the  sole  right  to  quarry,  take  and  sell  stone  for  a  term  for 
which  he  was  to  pay  a  certain  amount  per  annum.  The 
Supreme  Court  said:  "The  agreement  between  Cooper  and 
defendant  granted  the  latter  the  sole  right  to  quarry,  take 
and  sell  ganister  stone  from  a  certain  tract  of  land  for  the 
term  of  fifteen  years.  Without  going  into  the  niceties  of  dis- 
tinction between  licenses,  chattel  interests  and  sale  of  min- 
erals in  situ,  as  sales  of  the  land,  it  is  sufficient  for  the  present 
case  to  say,  while  the  grant  from  Cooper  to  defendant  was 
more  than  a  license,  because  it  passed  an  exclusive  interest 
in  the  land  for  a  certain  purpose  for  the  specified  term,  it  was 
less  than  a  sale,  for  the  term  was  limited,  and  stone  not  ac- 
tually taken  would  remain  part  of  the  land  and  revert  to  the 
lessor  at  the  end  of  the  term.  It  was,  therefore,  a  lease,  a 
chattel  interest  within  the  case  of  Brown  v.  Beecher,  120  Pa. 
590."  35 

In  connection  with  the  practical  questions  here  consid- 
ered, it  will  be  well  to  read  Chapter  XXIV,  on  Mining 
Leases. 

Necessity  of  a  Particular  Description  of  the  Extent  of  a  Right  to 
Mine. 

490.  There  was  a  tract  of  two  hundred  acres,  on  which 
coal  had  been  mined  at  several  openings.  The  lease  de- 
scribed the  thing  granted  by  the  lessors  no  otherwise  than  as 
their  "coal-bank."  It  was  said  that  the  lease  ought  to  have 
been  drawn  so  as  to  exclude  dissension;  that  it  was  for  the 
jury  to  say  what  was  the  extent  of  the  demise.  Words 

34  Brown  v.  Beecher,  120  Pa.  590. 

35  Duncan  v.  Hartman,  143  Pa.  595. 

15  '       -i 


226  LANDLORD  AND  TENANT. 

enough  were   not  put  into   the  instrument  to   define   the 
boundaries  of  the  grant.36 

Ascertaining  if  any  Old  Mining  Leases  are  Outstanding. 

491.  It  is  customary  in  mining  leases  to  have  agreements 
for  the  forfeiture  of  the  lease  for  the  non-payment  of  royal- 
ties, or  for  the  non-performance  of  certain  things  to  be  done 
by  the  tenant.     The  forfeiture  will  depend  upon  the  election 
of  the  landlord,  as  the  provision  for  such  forfeiture  will  be 
for  his  benefit.     It  sometimes  happens  that  tenants,  after 
making  attempts  to  find  minerals,  or  to  mine,  abandon  the 
demised  premises;  and  if  there  is  any  evidence  of  previous 
mining,  inquiry  should  be  made  of  the  landlord  as  to  whether 
or  not  he  has  exercised  his  right  of  forfeiture.     If  he  has  not, 
there  may  be  an  outstanding  tenancy  that  will  make  the  title 
of  the  new  tenant  defective. 

Protection  to  Landlord  who  Reserves  the  Surface  in  a  Lease  to  Mine. 

492.  In  case  a  lessee  has  a  right  to  mine  he  can  open  mines 
so  near  to  the  lessor's  dwelling-house,  to  a  spring,  or  to  a 
stream,  as  possibly  to  do  damage,  for  which  there  will  not  be 
remedy.     Mine  owners  have  the  right  to  pollute  streams  in 
mining,  and  that  in  some  cases  should  be  considered.     The 
right  to  open  and  work  mines  may  be  restricted  to  certain 
localities  so  as  to  avoid  such  damage. 

Binding  Remainderman  in  Case  of  a  Lease  by  Tenant  for  Life. 

493.  A  lessor  having  a  life  estate  made  a  coal  lease  in 
which  it  was  stated  that  "All  covenants  herein  bind  ex- 
ecutors,  administrators   and   assigns."     The   lessor  having 
died,  the  representatives  and  heirs  of  the  lessor  executed  an 
instrument  in  writing,  providing  that  the  lessee  should  not 
be  dispossessed  until  the  end  of  the  term,  and  it  was  held  that 

36  Tiley  v.  Meyers,  43  W.  N.  C.  404. 


f  PRACTICAL   DIRECTIONS    IN    RENTING   PROPERTY.  227 

the  lessee  had  no  right  to  have  the  lease  cancelled  upon  the 
death  of  the  lessor.37 

In  taking  a  lease  from  the  owner  of  a  life  estate,  if  those 
entitled  in  remainder  join  in  the  lease  in  renting  the  prop- 
erty for  a  certain  term,  the  rent  to  be  paid  to  the  tenant  for 
life  during  his  life  and  then  to  those  entitled  in  remainder, 
it  seems  as  if  the  remaindermen  will  be  bound  according  to 
the  above  authority.  In  such  case  it  will  be  well  to  have  the 
lease  acknowledged  and  recorded,  so  as  to  give  notice  to 
purchasers  or  mortgagees  of  the  remaindermen.  It  can  be 
agreed  that  in  case  the  remaindermen,  their  heirs  or  assigns, 
shall  not  be  bound  by  the  lease,  that  it  shall  cease. 

Necessity  of  Recording  Oil  Lease  when  Tenant  does  not  Take  Pos- 
session. 

494.  If  a  tenant  does  not  go  into  actual  possession  or  oc- 
cupation and  his  lease  is  not  recorded,  his  title  may  be  cut 
out  by  that  of  a  subsequent  purchaser  for  value  without 
notice.38 

Necessity  for  Having  Time  Fixed  for  Delivery  of  Landlord's  Share 
of  Crops. 

495.  Rent  reserved  for  a  farm  was  one-half  of  all  the 
crops  raised  thereon.     The  lease  did  not  indicate  in  terms 
when  the  rent  should  be  paid.     As  there  was  no  covenant 
to  pay  at  any  particular  time,  it  was  held  that  the  end  of  the 
year  was  the  period  which  the  law  assigned  for  the  annual 
reditus  to  the  landlord.     The  crops  were  severed  from  the 
ground,  and  it  was  held  that  the  fact  that  the  grain  had  been 
severed  prior  to  a  sheriff's  sale  of  the  farm,  but  not  delivered 
to  the  landlord,  did  not  vest  the  title  to  the  grain  in  him  as 
against  the  sheriff's  vendee.39 

The  lease  can  provide  that  the  delivery  of  the  crops  shall 
be  due  to  the  landlord  upon  severance,  and  then  they  should 

37  Gas  Co.  v.  Patterson,  184  Pa.  364. 

38  Aye  v.  Phila.  Co.,  193  Pa.  457. 

39  King  v.  Bosserman,  13  Super.  Ct.  R.  480. 


228  LANDLORD    AND    TENANT.  '] 

be  delivered.  In  coal  oil  and  gas  leases  they  may  possibly 
be  treated  like  farm  leases  as  to  questions  when  productions 
mined  are  due  to  the  landlord. 

In  case  of  a  private  sale,  and  the  crops  not  being  due  until 
the  end  of  the  year,  the  vendee  may  become  entitled  to  the 
crops  although  harvested  unless  the  vendor  reserves  such 
crops  in  the  agreement  of  sale.40 

Protection   of    Parties   in   Agreements   to    Pay   for   Taxes,    Charges, 
Assessments,  etc. 

496.  In  case  a  tenant  agrees  to  "pay  taxes,  water  rents  and 
assessments  upon  the  premises"  he  will  have  to  pay  for  paving 
and  curbing  a  street  opposite  the  demised  premises  and  he 
possibly  would  not  agree  to  do  so.     When  tenant  is  to  pay 
taxes,  gas,  water  rent,  etc.,  he  has  to  pay  the  parties  entitled 
to  receive  payment.41 

A  lease  can  provide  that  in  case  tenant  does  not  pay  such 
claims,  the  landlord  can  treat  the  amounts  unpaid  as  rent 
and  collectible  by  distress,  and  that  the  agreement  to  pay 
shall  extend  to  and  bind  the  assigns  of  the  parties. 

Dangers  in  Using  Clause  that  Landlord  may  Change  Terms  of  Lease. 

497.  In  the  city  of  Philadelphia  and,  it  may  be,  elsewhere 
in  Pennsylvania,  the  following  form  has  been  used  exten- 
sively : 

"And  it  is  hereby  mutually  agreed,  that  either  party  hereto 
may  determine  this  lease  at  the  end  of  said  term,  by  giving 
the  other  notice  thereof,  at  least  prior  thereto,  but 

in  default  of  such  notice,  this  lease  shall  continue  upon  the 
same  terms  and  conditions  as  are  herein  contained,  for  a  fur- 
ther period  of  and  so  on  from  to 
unless  or  until  terminated  by  either  party  hereto  giving  to 
the  other                notice  for  removal  previous  to  the  expira- 

40  King  v.  Bosserman,  8  Pa.  Dis.  344. 
,    41  Hand  v.  Suravitz,  148  Pa.  202. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  229 

tion  of  the  then  current  term.  Provided  however,  that  if 
the  lessor  shall  have  given  notice  previous  to  the 

expiration  of  said  term,  or  any  extension  or  renewal  thereof 
as  above,  of  intention  to  change  the  terms  and  condi- 

tions of  this  lease,  and  the  lessee  shall  hold  over  after  such 
notice  he  shall  be  considered  lessee  under  the  terms  and 
conditions  mentioned  in  such  notice,  for  such  further  period 
as  he  may  remain  in  possession  of  said  premises,  and  until 
this  lease  is  terminated  by  notice  as  hereinbefore  provided." 

It  seems  that  care  should  be  exercised  in  filling  in  the  form, 
or  its  use.  For  an  instance,  a  lease  was  prepared  for  a  ten- 
arit  to  sign  in  which  the  blanks  were  filled  in  so  that  either 
party  could  terminate  the  lease  upon  three  months'  notice 
before  the  end  of  the  term,  but  so  that  the  landlord  could 
change  the  terms  of  the  lease  upon  ten  days'  notice  before 
the  end  of  the  term,  and  if  the  proposed  lessee  had  signed 
the  lease  the  result  would  have  been  that  the  lessee  could 
have  been  compelled  to  vacate  on  ten  days'  notice  by  the 
lessor  so  changing  the  terms  that  they  would  not  be  accepted 
by  the  lessee.  Even  supposing  the  lease  should  provide  that 
the  notice  to  change  the  terms  should  be  given  three  months 
before  the  end  of  the  term,  and  the  notice  by  lessor  should 
be  given  at  the  last  hour,  there  may  be  a  question  whether 
according  to  the  reading  of  the  form  the  lessee  would  not 
be  in  for  another  year  with  changed  terms  because  he  had 
no  opportunity  to  give  and  had  not  given  notice  to  terminate 
the  lease  at  the  end  of  term  three  months  before  its  termina- 
tion. 

In  Case  of  Doubtful  Construction,  the  Tenant  Favored. 

498.  The  rule  of  law  respecting  leases  of  doubtful  dura- 
tion is,  they  must  be  construed  favorably  to  the  tenant.  Tf 
the  duration  is  left  optional  by  the  terms  of  the  lease,  without 
saying  at  whose  option,  as  for  instance,  if  a  lease  be  made  for 
seven,  fourteen  or  twenty-one  years,  it  means  at  the  option 


230  LANDLORD  AND  TENANT. 

of  the  tenant  who  has  the  right  of  choosing  whether  he  will 
put  an  end  to  the  lease  at  the  end  of  seven  years,  or  continue 
it  for  fourteen  or  twenty-one  years.  And  in  all  cases  of  un- 
certainty, the  tenant  is  most  favored  by  law,  because  the  land- 
lord, having  the  power  of  providing  expressly  in  his  own 
favor,  has  neglected  to  do  so;  and  on  the  principle  that  every 
man's  grant  shall  be  taken  most  strongly  against  himself.42 
In  view  of  the  above  principle  of  construction  the  landlord 
should  be  careful  to  see  that  his  lease  is  entirely  free  from 
doubt,  and  in  doing  so  the  aid  of  counsel  should  be  obtained 
in  every  important  lease. 

Fixing  a  Time  for  the  Tenant  to  Perform  an  Agreement  to  Hake 
Improvements. 

499.  In  case  tenant  agrees  to  make  improvements  he  can 
do  so  at  any  time  during  lease. 

There  was  a  lease  for  five  years  with  privilege  of  a  ten 
years'  lease.  The  tenant  was  to  improve,  and  it  was  held  that 
the  lessee  could  make  the  improvements  at  any  time  during 
the  lease.43 

There  may  be  a  case  where  it  will  be  to  the  interest  of  the 
landlord  that  the  improvements  shall  be  made  before  the  end 
or  near  the  end  of  the  lease.  If  the  tenant  has  the  whole 
term  in  which  to  improve  he  may  happen  to  break  his  agree- 
ment near  the  end  of  the  lease  and  go  out  without  improving, 
and  the  landlord  may  have  no  redress  but  in  action  for 
damages,  which  may  be  useless. 

Protecting  Landlord's  Bight  to  Tenant's  Fixtures  at  the  End  of  the 
Lease  from  Levy,  etc. 

500.  If  there  be  an  agreement  between  the  landlord  and 
tenant  that  the  fixtures  of  the  tenant  are  to  become  the  prop- 
erty of  the  landlord  at  the  end  of  the  lease,  such  fixtures  may 
be  levied  upon  in  the  meantime.44 

42  Com.  v.  McNeile,  8  Phila.  438. 

43  Palethrop  v.  Bergner,  52  Pa.  149. 

44  Lemar  v.  Miles,  4  Watts,  330. 


PRACTICAL    DIRECTIONS    IN    RENTING    PROPERTY.  231 

It  is  suggested  that  the  landlord  possibly  may  be  protected 
by  a  provision  in  the  lease  that  in  case  of  a  levy  upon  such 
fixtures  the  title  and  ownership  thereof  shall  vest  in  the  land- 
lord immediately  before  the  issuing  of  any  execution  or  at- 
tachment against  the  tenant,  subject  to  any  rights  of  the 
tenant  to  use  the  same  during  his  lease.  Under  such  cir- 
cumstances delivery  to  the  landlord  would  not  be  necessary. 

If  an  Assignee  Assigns  his  Lease  and  Retains  an  Interest  He  will 
Remain  Liable. 

501.  The  privity  of  estate  which  induces  the  liability  of  the 
assignee  is  the  actual  or  beneficial  enjoyment  of  the  premises. 
It  is  not  necessary  that  the  legal  title  shall  be,  or  shall  con- 
tinue, in  him  who  is  to  be  held  because  of  his  privity  of  estate. 
One  who  has  a  beneficial  interest  in  the  estate  created  by  the 
lease,  or  enjoys  the  profits  thereof,  or  has  a  right  to  enjoy 
such  profits,  is  in  privity  of  estate,  as  the  successor  to  the 
title  of  the  lessee.     When  the  assignee  of  a  leasehold  estate 
executes  a  lease  of  the  premises,  reserving  a  larger  rent  or 
containing  covenants  more  advantageous  than  those  found  in 
the  original  leasehold,  he  reserves  to  himself  a  benefit  under 
the  original  lease,  and  his  privity  of  estate  is  thus  continued.45 

In  case  an  assignee  assigns  his  lease  he  should  be  careful 
not  to  retain  any  interest  in  the  demised  premises  or  in  the 
rents  and  income  thereof  in  any  way  or  manner,  directly  or 
indirectly. 

Necessity   of   Having   a   Clause   for   Forfeiture   for   a   Breach   of   a 
Covenant  Not  to  Assign. 

502.  The  fact  that  an  assignment  of  a  lease  is  in  violation 
of  a  covenant  therein  does  not  prevent  the  passing  of  the 
title.46     In  view  of  this  consequence  it  becomes  important 
that  the  landlord  should  have  the  right  to  terminate  the  lease 
for  such  a  breach,  as  otherwise  he  may  have  only  a  right  to 

45  McClaren  v.  Oil  Co.,  14  Super.  Ct.  R.  167. 

46  Petroleum  Co.  v.  Oil  Co.,  23  Pa.  C.  C.  R.  153. 


232  LANDLORD  AND  TENANT. 

an  action  for  damages  which  may  prove  fruitless.  In  assess- 
ing damages  for  a  breach  of  covenant  not  to  assign  it  is  con- 
sidered in  how  much  worse  position  the  plaintiff  will  be  than 
he  would  have  been  in  if  he  had  retained  the  defendant's 
liability.47  As  to  the  assignor's  liability,  he  will  remain  liable 
although  he  assigns,  and  the  landlord  financially  may  be  in 
the  same  and,  perhaps,  a  better  position,  and  if  so,  how  can 
there  be  any  damages  recovered? 

Guarding    Against    the    Breach    of    Trifling    Covenants    Giving    the 
Bight  to  Recover  Possession. 

503.  It  seems  that  in  justice  to  a  tenant  he  should  have 
reasonable  notice  to  perform  trifling  covenants  before  the 
landlord  can  recover  possession.     In  a  lease  commonly  used, 
if  the  tenant  does  not  keep  the  premises  in  good  order  and 
repair,  and  remove  ashes,  rubbish  or  refuse  matter  therefrom 
the  lease  shall  determine  and  the  landlord  may  recover  pos- 
session.    It  will  not  do  to  argue  that  a  breach  in  such  case 
is  a  small  matter.     Landlords  generally  tolerate  such  viola- 
tions of  a  lease,  but  it  is  not  safe  always  to  rely  upon  such 
conduct.     If  a  landlord  should  desire  to  break  a  lease  he  may 
be  tempted  to  take  every  advantage  allowed  by  the  law. 

In  Case  a  Tenant  Agrees  to  Use  or  Not  to  Use  Demised  Premises  for 
a  Certain  Business  or  Purpose. 

504.  A  lessee  under  a  lease  containing  a  covenant  that 
under  penalty  of  forfeiture  he  would  neither  occupy  nor  per- 
mit the  premises  to  be  occupied  otherwise  than  as  a  saloon 
or  dwelling,  without  the  lessor's  written  consent  indorsed, 
was  not  released  from  liability  for  the  rent  by  a  failure  to 
obtain  a  license  to  sell  liquors.48     This  case,  shows  a  danger 
there  may  be  in  a  person  renting  a  property  for  only  a  certain 
business  or  use  and  then  discontinuing  the  business  or  the 
use  provided.     When  there  is  a  restriction  as  to  a  business  it 

47  Sedgwick's  Measure  of  Damages.  233,  note. 

48  Teller  v.  Boyle,  132  Pa.  56. 


PRACTICAL   DIRECTIONS    IN    RENTING   PROPERTY.  233 

should  be  broad  enough  so  that  the  tenant  can  get  another 
person  to  take  his  place  in  case  he  should  vacate. 

Danger  of  there  being  a  Breach  of  a  Covenant  Not  to  Assign  Lease 
by  Taking  a  Partner. 

505.  Case  of  tenant  taking  a  lease  with  a  covenant  not  to 
assign  and  then  taking  a  partner:    Where  a  partner  of  the 
lessee,  on  a  dissolution,  becomes  his  successor  in  the  busi- 
ness, and  continues  to  occupy  the  demised  premises,  and  the 
lease  contains  a  clause  against  an  assignment  without  the 
consent  of  the   landlord,   such   continuing  partner  will  be 
deemed  as  assignee  of  the  term.49 

It  may  occur  that  an  individual  tenant  may  take  a  partner 
and  assign  to  him  a  right  in  the  lease,  and  in  such  case  it  may 
be  well  to  have  the  prohibition  against  an  assignment,  with 
the  provision  that  the  tenant  may  take  a  partner  and  give  him 
a  right  in  the  lease.  For  safety,  if  there  is  no  such  clause, 
the  consent  of  the  landlord  to  the  assignment  had  better  be 
procured. 

Necessity  for  a  Description  to  Locate  Premises  in  Leases  or  Amicable 
Ejectments. 

506.  An  amicable  action  with  confession  of  judgmnt  upon 
a  lease  was  entered  for  premises  No.  136  South  Third  Street, 
in  the  city  of  Philadelphia.     The  case  appears  to  have  been 
taken  to  the  Supreme  Court  by  a  writ  of  error  without  any 
intermediate  rule.     There  was  an  objection  that  the  descrip- 
tion was  too  indefinite,  but  the  Superme  Court  affirmed  the 
judgment,  because  the  street  number  alone  indicated  the 
premises.50     The  question  arises:  Supposing  no  street  num- 
ber had  been  given,  what  would  have  been  the  result?     The 
act  of  1806  requires  a  description  to  be  filed  in  proceedings 
in  ejectment. 

The  safe  practice  is  to  describe  the  land  so  that  the  sheriff 

49  McAdam  on  Landlord  and  Tenant.  285. 

50  Flanigan  v.  The  City,  51  Pa.  491. 


234  LANDLORD    AND    TENANT. 

can  execute  the  writ  without  difficulty  and  with  no  extrinsic 
aid  or  explanation.51  It  is  suggested  that  it  will  be  well  to 
give  the  street  number,  if  any,  in  a  lease,  or  to  give  some 
description  that  will  particularly  locate  the  demised  prem- 
ises. If  this  is  not  done  it  will  be  well  for  the  amicable  action 
and  writ  of  execution  to  define  and  locate  the  premises,  as  it 
is  not  known  how  the  courts  will  decide  in  case  objection 
is  made. 

Giving  Bight  to  Distrain  Off  the  Demised  Premises. 

506*.  At  common  law  a  landlord  could  not  distrain  goods 
oft"  the  demised  premises.  By  the  act  of  March  21,  I/72,52 
if  a  tenant  should  fraudulently  or  clandestinely  remove  his 
goods  from  the  demised  premises  to  prevent  the  landlord 
from  distraining,  the  landlord,  within  thirty  days  after  the 
removal  of  goods,  may  follow  and  distrain  upon  them,  if  they 
should  not  be  sold.  By  the  act  of  March  25,  i825,53  and  a 
supplement  thereto,  if  goods  should  be  fraudulently  re- 
moved in  Philadelphia,  Pittsburg  or  Allegheny  to  prevent  a 
distress,  the  rent  can  be  apportioned  to  the  date  of  removal 
and  goods  can  be  followed  and  distrained  upon  an  affidavit 
being  made  as  to  fraudulent  removal.  It  was  held  as  to  the 
first  act  that  a  mere  removal  in  the  daytime,  without  the 
knowledge  of  the  landlord,  would  not  be  fraudulent;  that  the 
landlord  must  be  vigilant,  and  if  he  should  neglect  to  distrain 
when  the  rent  becomes  due  he  will  lose  his  remedy  under  the 
act.54  A  lease  contained  a  clause  reading  as  follows:  "And  it 
is  further  agreed,  that  should  the  property  of  the  lessee  be 
removed  from  the  aforesaid  premises,  the  lessor  is  hereby 
authorized,  at  any  time  within  ninety  days  thereafter,  to  enter 
upon  the  same  wherever  found,  and  to  seize  and  sell  so  much 
thereof  as  will  fully  satisfy  him,  the  said  lessor,  for  all  arrears 

51  i  Brewster's  Practice,  363. 

52  Act  of  March  21,  1772,  i  P.  &  L.  Dig.  2638;  i  Sm.  L.  370. 

53  Act  of  March  25,  1825,  i  P.  &  L.  Dig.  2639;  P.  L.  114. 

54  Grace  v.  Shively,  12  S.  &  R.  216;  Grant's  Ap.,  44  Pa.  477. 


PRACTICAL    DIRECTIONS   IN    RENTING    PROPERTY.  235 

of  rent  then  due  or  to  become  due,  as  above  provided,  and 
the  costs  thereon."  The  court  of  common  pleas  of  York 
county,  in  considering  this  clause,  said:  "Can  it  mean  a  re- 
moval to  which  the  landlord  consents,  if  that  be  the  fact,  or 
can  it  mean  any  other  than  a  fraudulent  or  clandestine  re- 
moval? Without  deciding  a  question  which,  on  this  motion, 
has  not  arisen,  it  looks  as  if  it  must  be  construed  to  mean 
a  fraudulent  or  clandestine  removal,  and  if  it  was  neither,  but 
with  the  knowledge  and  consent  of  the  landlord,  then  it  is  not 
effective,  and  no  levy  could  be  made  under  the  landlord's 
warrant,  and  the  plaintiff  would  not  have  been  injured  by 
the  conduct  of  the  defendant  under  it :  Owens  v.  Shovlin,  1 16 
Pa.  371."  55  From  the  narrow  construction  of  the  act  of 
1772  by  the  decisions,  such  clauses  as  that  above  stated  have 
been  commonly  inserted  in  leases.  According  to  the  letter 
of  such  clauses,  after  a  removal  at  any  time,  by  day  or  by 
night,  with  or  without  the  knowledge  of  the  landlord,  the 
goods  removed  can  be  levied  upon  at  any  time.  The 
words  being  plain  and  leading  to  no  absurdity,  there  is  no 
room  for  construction  or  to  incorporate  by  implication  the 
words  "fraudulently"  or  "clandestinely."  In  construing  the 
contract  the  acts  of  assembly  can  have  no  application  fur- 
ther than  this:  that  the  acts  were  narrow  and  such  clauses 
were  made  broader,  omitting  the  words  "fraudulently"  or 
"clandestinely."  In  treating  the  clauses  in  question  as  the 
acts  of  assembly  there  would  be  a  violation  of  fundamental 
rules  of  construction.  The  plain  words  of  the  lease  would  be 
disregarded,  and,  above  all,  the  intention  of  the  parties  would 
not  prevail.  Owens  v.  Shovlin,  quoted  in  Baer  v.  Kuhl, 
has  no  application  to  the  question  considered.  There 
was  a  provision  for  a  distress  in  case  of  a  tenant's  removal 
from  the  premises,  but  there  was  no  provision  for  fol- 
lowing and  distraining  upon  goods  removed.  A  lease  was 
for  a  store  room  for  two  years,  for  the  yearly  rent  of  $2,000, 

55  Baer  v.  Kuhl,  8  Pa.  Dis.  389. 


236  LANDLORD  AND  TENANT. 

with  the  stipulation  that  if  the  lessee  should  "at  any  time 
during  the  continuance  of  this  lease,  attempt  to  remove  or 
manifest  an  intention  to  remove  his  goods  and  effects  out  of 
or  off  the  premises,  without  having  paid  in  full  for  all  rent 
which  shall  become  due  during  the  term  of  this  lease,  then 
the  whole  rent  for  the  whole  term  shall  be  taken  to  be  due, 
and  the  lessor  may  proceed  to  distrain  and  collect  the  whole 
as  if  by  the  conditions  of  the  lease  the  whole  rent  was  pay- 
able in  advance."  It  was  held  that  by  the  lease  it  was  not 
required  that  the  attempt  or  intention  to  remove  the  goods 
should  be  fraudulent  in  order  to  authorize  a  distraint.56 
This  case  shows  the  great  liberality  of  the  courts  in  allowing 
persons  generally  to  make  their  contracts  regardless  of  re- 
sults or  hardships.  Considering  the  doubts  which  have 
arisen,  as  above  indicated,  it  is  suggested  that  the  clauses  in 
question  can  provide  for  the  apportionment  of  the  rent 
to  the  date  of  the  removal  of  goods,  or  to  have  rent 
fall  due  in  advance;  and  to  give  the  right  to  distrain, 
whether  the  removal  may  be  by  day,  by  night,  fraudu- 
lent, with  the  knowledge  or  consent  of  the  landlord  or  other- 
wise. The  right  to  distrain  on  goods  removed,  with  the  rent 
apportioned  to  the  date  of  removal,  with  the  right  to  recover 
possession  for  non-payment  of  rent  byan  amicable  ejectment, 
would  be  sufficient  generally  to  protect  a  landlord.  To  go 
further  than  this  and  to  have  the  whole  future  rent  to  fall 
due,  if  of  considerable  amount,  seems  morally  wrong, 
though,  like  Shylock's  bond,  it  may  be  legally  right. 

56  Goodwin  v.  Sharkey,  80  Pa.  149. 


CHAPTER  XXVI. 


FORMS. 


PAGE  238. 


SECTION 

507.  A  lease. 

508.  Farm  lease. 

509.  Farm  lease  on  shares. 

510.  Farm  lease  on  shares,  short 

form. 

511.  Covenant    that    lessee    shall 

fallow   the   land   and   mow 
but  once  a  year,  etc. 

512.  Covenant    that    lessee     may 

dispose   of  hay  and   straw. 

513.  Covenant  to   lay  down   part 

of  the  ground  with  clover, 
etc. 

514.  That  the  lessee  shall  use  the 

hay,     dung,     etc.,     on     the 
premises. 

515.  Fire    clause   for   farm    lease, 

No.  i. 

516.  Fire   clause   for   farm    lease. 

No.  2. 

517.  Fire  clause  for  a  dwelling. 

518.  Fire    clause    for    a    business 

property. 

519.  To    protect    against    assign- 

ment of  lease. 

520.  For  insertion  after  ejectment 

clause. 

521.  Giving    an    option    to    pur- 

chase. 

522.  Surety  for  tenant. 

523.  Assignment  of  lease. 

524.  Surrender  of  lease. 

525.  Distress  warrant. 


SECTION 

526.  Notice  of  distraint. 

527.  Affidavit    of    appraisers    and 

appraisement. 

528.  Consent  of  tenant  to  permit 

distrained     goods     to     re- 
main. 

529.  Notice  of  constable's  sale. 

530.  Claim  for  benefit  of  exemp- 

tion law. 

531.  Summons  of  appraisers. 

532.  Affidavit    of    appraisers    and 

election. 

533-  Appraisement    of    exempted 
goods. 

534.  Amicable    action    and    judg- 

ment in  ejectment. 

535.  Notice  to  quit  for  non-pay- 

ment of  rent  under  act  of 
1830. 

536.  Complaint. 

537.  Summons. 

538.  Writ  of  restitution. 

539.  Record. 

540.  Notices    to    quit    at    end    of 
' lease. 

541.  Complaint      for      possession 

under  act  of  I772- 

542.  Precept  to  the  sheriff. 

543.  Inquisition. 

544.  Record. 

545.  Summons     to     third     party 

claiming  title. 

237 


238  LANDLORD  AND  TENANT. 

SECTION  SECTION 

546.  Complaint      for      possession  550.  Notice  in  case  of  lost  lease. 

under  act  of  1863.  551-  Second  notice. 

547.  Summons.  552.  Notice  when  tenant  is  unable 

548.  Record.  to  answer  first  notice. 

549.  Writ  of  restitution. 

A  Lease. 

507.  THIS  AGREEMENT  WITNESSETH,  that  A.  B.,  of  , 

doth  hereby  let  unto  C.  D.  [here  describe  premises]  for  the 
term  of  one  year  from  the  first  day  of  January  A.  D.  nine- 
teen hundred,  at  the  rent  of  three  hundred  dollars  per  annum, 
to  be  'paid  monthly  in  advance,  the  first  monthly  payment 
thereof  to  be  made  on  the  first  day  of  January,  Anno  Domini 
1900,  and  said  lessee  doth  hereby  agree  to  pay  said  rent  to 
the  said  lessor  on  the  days  and  times  aforesaid,  at  the 
of  the  said  lessor,  or  at  such  other  place  within  as  said 

lessor  may  in  writing  from  time  to  time  direct,  without  de- 
mand being  made  therefor,  and  that  he  will  not  assign  this 
lease,  nor  underlet  the  said  premises,  or  any  part  thereof,  or 
use  or  occupy  the  same  other  than  as  a  without  the  written 
consent  of  the  said  lessor  first  had  and  obtained,  and  during 
the  said  term  will  keep  said  premises  in  good  condition,  order 
and  repair,  and  at  the  termination  of  said  term  or  of  any  ex- 
tended term,  will  deliver  up  the  said  premises  in  as  good  con- 
dition, order  and  repair  as  they  now  are,  reasonable  wear  and 
tear,  and  loss  or  damage  by  fire  or  other  casualties,  excepted. 
And  the  said  lessee  further  agrees  that  if  the  rent  shall  re- 
main unpaid  on  any  day  on  which  the  same  ought  to  be  paid, 
then  the  lessor  may  enter  the  premises,  and  proceed  by 
distress  and  sale  of  the  goods  there  found,  to  levy  the  rent  and 
all  costs  and  officer's  commissions.  The  said  lessee  further 
agrees  that  all  goods  on  the  said  premises,  and  for  thirty  days 
after  removal,  shall  be  liable  to  distress  for  rent,  and  hereby 
waives  the  benefit  of  all  exemption  laws  in  relation  thereto. 
And  said  lessee  further  agrees  that  this  waiver  shall  extend 
and  be  applicable  to  any  process,  execution  or  executions 
that  may  be  issued  in  any  or  all  suits,  actions  or  proceed- 


FORMS.  239 

ings,  for  the  collection  of  rent  due  and  in  arrear,  and  for 
damages  for  the  non-fulfilment  of  any  of  the  covenants  herein 
contained.  And  it  is  hereby  mutually  agreed,  that  either  party 
hereto  may  determine  this  lease  at  the  end  of  said  term,  by 
giving  the  other  notice  thereof,  at  least  prior  thereto, 

but  in  default  of  such  notice,  this  lease  shall  continue  upon 
the  same  terms  and  conditions  as  are  herein  contained,  for  a 
further  period  of  one  year  and  so  on  from  year  to  year  unless 
or  until  terminated  by  either  party  hereto  giving  to  the  other 
notice  for  removal  previous  to  the  expiration  of  the 
second  or  any  succeeding,  current,  additional  or  extended 
year  or  term  under  said  lease,  expressed  or  implied. 

All  rights  and  liabilities  herein  given  to,  or  imposed  upon, 
either  of  the  parties  hereto,  shall  extend  to  the  heirs,  execu- 
tors, administrators,  successors  and  assigns  of  such  party. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals,  this  day  of  ,  one  thousand  nine 

hundred. 

Sealed  and  delivered  in 
the  presence  of 

SEAL. 

SEAL. 

NOTE. — The  above  lease  can  have  clauses  inserted  according  to  the 
circumstances,  such  as  the  following:  To  remove  rubbish;  to  pay  for 
light,  heat  or  power  as  rent;  for  amicable  ejectment  proceedings  to  re- 
cover possession  for  not  performing  the  terms  of  the  lease;  for  the  land- 
lord to  enter  the  demised  premises  for  examination;  a  fire  clause;  for  sign 
rights;  for  rights  of  way;  for  elevator  rights,  etc.  In  case  the  tenant's 
ownership  shall  be  transferred  by  operation  of  law,  such  an  event  may  be 
made  a  ground  for  recovering  possession  of  the  premises. 

Farm  Lease. 

508.  THIS  AGREEMENT  WITNESSETH,  that  A.  B.,  of 
doth  hereby  let  and  demise  unto  C.  D.  [describe  farm], for  the 
term  of  three  years  from  the  first  day  of  April,  A.  D.  nineteen 
hundred,  at  the  rent  of  six  hundred  dollars  per  annum,  to  be 
paid  quarterly  in  advance  by  the  lessee  at  the  or  at 


240  LANDLORD  AND  TENANT. 

such  place  as  the  lessor  or  any  subsequent  owner  may  re- 
quire ;  the  first  quarterly  payment  thereof  to  be  made  on  the 
first  day  of  April,  1900,  which  said  rent  the  said  lessee  doth 
hereby  agree  to  pay  to  the  said  lessor  on  the  days  and  times 
aforesaid,  and  that  he  shall  not  nor  will  assign  this  lease  nor. 
underlet  the  said  premises,  or  any  part  thereof,  or  use  or  oc- 
cupy the  same  other  than  as  a  farm,  without  the  written  con- 
sent of  the  said  lessor  first  had  and  obtained,  and  shall  and 
will  during  the  said  term  keep,  and  at  the  termination  thereof 
deliver  up,  the  said  premises  in  as  good  order  and  repair  as 
they  are  now  in,  reasonable  wear  and  tear  and  casualties 
which  may  happen  by  fire  or  otherwise  only  excepted.  The 
lessee  agrees  as  follows,  viz. :  That  he  will  use  on  the  said 
premises  all  the  hay,  straw  and  fodder  which  shall  be  grown 
thereon ;  that  he  will  not  sell,  assign,  pledge,  remove  or  cause 
or  suffer  to  be  removed  any  of  the  dung,  manure  or  com- 
post made  or  which  shall  be  on  said  premises,  and  that  he  will 
use  and  spread  the  same  thereon  at  proper  times  and  places  for 
the  nourishment  thereof,  and  that  upon  the  termination  of 
this  lease  or  any  subsequent  letting  thereunder  he  will  leave 
upon  the  said  premises  any  remaining  hay,  straw,  fodder  or 
manure,  which  shall  then  become  the  property  of  the  lessor; 
that  he  will  not  convert  into  tillage  or  garden  ground  any  of 
the  pasture  or  meadow  ground ;  that  he  will  not  mow  any  of 
the  meadow  or  pasture  ground  more  than  once  in  any  one 
year ;  that  he  will  not  cut  down  or  use  any  of  the  trees  upon 
the  said  premises ;  that  he  will  mow  or  keep  down  in  the  usual 
manner,  thistles,  docks  and  other  seeding  weeds ;  that  he  will 
keep  the  fences  in  good  repair,  the  lessor  furnishing  such  ma- 
terials for  the  purpose  as  he  may  think  necessary ;  that  he  will 
cultivate  the  said  farm  with  respect  to  crops  and  in  every  re- 
spect according  to  the  usual,  course  and  custom  of  good 
husbandry,  sowing  winter  grain  with  a  sufficient  quantity  of 
timothy  and  clover  seed.  And  if  the  rent  shall  remain  unpaid 
on  any  day  on  which  the  same  ought  to  be  paid,  then  the 
lessor  may  enter  the  premises,  and  proceed  by  distress  and 


FORMS.  241 

sale  of  the  goods  there  found,  to  levy  the  rent  and  all  costs 
and  officer's  commissions.  The  said  lessee  further  agrees  that 
all  goods  on  the  said  premises,  and  for  thirty  days  after  re- 
moval shall  be  liable  to  distress  for  rent  and  hereby  waives 
the  benefit  of  all  exemption  laws  in  relation  thereto  or  to  any 
execution.  And  it  is  hereby  mutually  agreed,  that  either 
party  hereto  may  determine  this  lease  at  the  end  of  the  said 
term,  by  giving  the  other  notice  thereof,  at  least  three  months 
prior  thereto,  but  in  default  of  such  notice,  this  lease  shall 
continue  upon  the  same  terms  and  conditions  as  are  herein 
contained,  for  a  further  period  of  one  year  and  so  on  from 
year  to  year  unless  or  until  terminated  by  either  party  hereto 
giving  to  the  other  three  months'  written  notice  for  removal 
previous  to  the  expiration  of  the  second  or  any  succeeding  or 
extended  term  under  this  lease,  express  or  implied.  And  it  is 
further  agreed,  that  if  the  lessee  shall  die  or  if  there  shall  be  any 
involuntary  assignment  of  this  lease  by  law  or  otherwise,  or  if 
the  said  rent  shall  at  any  time  be  in  arrear  and  unpaid,  or  if 
the  said  lessee  shall  underlet  or  otherwise  use  the  said  prem- 
ises than  as  above  expressed,  or  shall  fail  to  comply  with  the 
conditions  of  this  lease  or  shall  not  well  and  truly  perform 
and  fulfil  all  and  every  the  covenants  and  agreements  herein 
contained  on  the  part  of  the  lessee  to  be  performed  and  kept, 
then  this  lease  shall,  at  the  option  of  the  said  lessor,  cease  and 
absolutely  determine,  and  any  attorney  may  immediately 
thereafter,  as  attorney  for  the  said  lessee,  at  the  sole  request 
of  the  said  lessor,  sign  an  agreement  for  entering  in  any 
competent  court,  an  amicable  action  and  judgment  in  eject- 
ment (without  any  stay  of  execution  or  appeal)  against  the 
said  lessee  and  all  persons  claiming  under  said  lessee  for  the 
recovery  by  the  said  lessor  of  possession  of  the  hereby  de- 
mised premises,  without  any  liability  on  the  part  of  the  said 
attorney,  for  which  this  shall  be  a  sufficient  warrant;  and 
thereupon  a  writ  of  habere  facias  possessionem  may  issue  forth- 
with without  any  prior  writ  or  proceeding  whatsoever,  and 
the  lessee  hereby  releases  to  the  lessor  all  errors  and  defects 
16 


242  LANDLORD  AND  TENANT. 

whatsoever  in  entering  such  action  or  judgment,  or  causing 
such  writ  of  habere  facias  possessionem  to  be  issued,  or  in  any 
proceeding  thereon,  or  concerning  the  same;  and  hereby 
agree  that  no  writ  of  error  or  objection  or  exception  shall  be 
made  or  taken  thereto ;  and  a  copy  of  this  lease  verified  by  affi- 
davit, being  filed  in  said  action,  it  shall  not  be  necessary  to 
file  the  original  as  a  warrant  of  attorney,  any  law  or  rule  of 
court  to  the  contrary  notwithstanding.  No  such  determina- 
tion of  this  lease,  nor  taking  or  recovering  possession  of  the 
premises,  shall  deprive  the  lessor  of  any  other  action  against 
the  lessee  for  possession  for  rent  or  for  damages. 

It  is  mutually  agreed  that  this  lease  shall  extend  and  apply 
to  and  bind  the  respective  heirs,  assignees,  devisees,  executors 
and  administrators  of  the  lessor  and  lessee  and  all  covenants, 
agreements,  conditions  and  provisions  herein  shall  apply  to 
and  bind  the  owner  of  the  lease  or  demised  premises  as  if  the 
same  ran  with  the  land  or  as  if  they  were  original  parties  and 
the  lessee  agrees  that  no  objection  shall  be  made  to  the  said 
ejectment  proceedings  by  reason  of  rent  not  having  been  de- 
manded or  collected  when  due  or  by  any  waiver. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals,  this  day  of  one  thousand  nine 

hundred. 

Sealed  and  delivered  in 
the  presence  of 

SEAL. 

SEAL. 
Farm  Lease  on  Shares. 

509.  THIS  AGREEMENT  WITNESSETH,  that  A.  B.  doth 
hereby  let  and  demise  unto  C.  D.  [here  describe  the  farm  with 
buildings]  for  the  term  of  one  year  from  the  first  day  of  April, 
A.  D.  nineteen  hundred ;  the  said  C.  D.  to  yield  and  pay  unto 
the  said  A.  B.  one-half  part  of  all  the  grain  which  shall  be 
raised  or  grown  upon  the  said  premises,  and  which  letting 
is  to  be  according  to  the  following  agreements : 

The  said  C.  D.  shall  plant  crops  and  cultivate  the  farm  as 


FORMS.  243 

follows  [state  how  fields  are  to  be  planted ;  what  crops  are  to 
be  sown;  how  much  winter  grain,  etc.].  Each  party  is  to 
find  and  pay  for  one-half  the  seeds  for  crops.  The  said 
C.  D.  is  to  find  and  pay  for  all  farming  implements,  all 
the  working  stock,  all  the  necessary  labor  and  all  the  other 
expenses  in  working  and  cutivating  the  farm  and  is  to  work 
the  farm  diligently  in  a  husband-like  manner.  The  said 
C.  D.  is  to  have  the  right  to  keep  and  feed  not  more  than 
horned  cattle  and  horses;  the  products  of  the 

dairy  and  garden  products  are  to  be  for  the  exclusive  use  and 
benefit  of  the  said  C.  D.  The  manure,  hay,  straw  and  corn 
which  shall  be  grown  upon  the  premises  and  all  manure  made 
thereon  shall  belong  solely  to  the  said  A.  B.,  but  the  same 
shall  be  used  upon  the  farm  for  its  nourishment,  but  any  part 
thereof  which  shall  not  have  been  so  used  shall  belong  to  the 
said  A.  B.  The  said  A.  B.  shall  have  the  right  to  store  in  the 
farm  buildings  his  share  of  the  crops,  and  the  said  A.  B.  re- 
serves the  right  of  entering  and  visiting  the  said  farm  and  the 
farm  buildings,  to  inspect  the  farming  operations,  receive, 
take  care  of  and  dispose  of  his  share  of  the  grain.  The  said 
C.  D.  shall  -keep  the  fences  up  and  in  good  order  and  repair 
at  his  own  expense;  keep  down  the  weeds  and  preserve  all 
trees  and  timber.  It  is  agreed  that  there  shall  not  be  any 
partnership  between  the  parties  hereto;  and  it  is  hereby 
mutually  agreed  that  the  said  A.  B.  shall  have  the  ownership 
of  one-half  part  of  all  the  grain  sowed  when  in  the  ground 
and  until  it  shall  be  divided  and  that  all  crops  shall  be  cut 
and  harvested  in  due  season  by  the  said  C.  D.,  and  that  there 
shall  be  a  division  between  the  said  A.  B.  and  C.  D.  of  their 
shares  of  the  grain  upon  such  harvesting.  And  the  said  les- 
see doth  hereby  agree  to  pay  the  said  rent  to  the  said  lessor 
and  deliver  to  him  his  share  of  the  said  grain  at  the  time 
aforesaid,  at  or  in  said  barn  or  at  such  other  place,  within 
said  as  said  lessor  may  in  writing  from  time  to  time 

direct,  without  demand  being  made  therefor,  and  that  he  will 
not  assign  this  lease  nor  underlet  the  said  premises,  or  any 


244  LANDLORD    AND    TENANT. 

part  thereof,  or  use  or  occupy  the  same  other  than  as  a  farm 
without  the  written  consent  of  the  said  lessor  first  had  and  ob- 
tained, and  during  the  said  term  will  keep  said  premises  in 
good  condition,  order  and  repair,  and  at  the  termination  of 
said  term  will  deliver  up  the  said  premises  in  as  good  condi- 
tion, order  and  repair  as  the  same  now  are,  reasonable  wear 
and  tear  and  casualties  which  may  happen  by  fire  or  other- 
wise excepted.  And  the  said  lessee  further  agrees  that  if  the 
rent  shall  remain  unpaid  on  any  day  on  which  the  same  ought 
to  be  paid,  then  the  lessor  may  enter  the  premises  and  pro- 
ceed, by  distress  and  sale  of  the  goods  there  found,  to  levy 
the  rent  and  all  costs  and  officer's  commissions.  The  said 
lessee  further  agrees  that  all  goods  on  the  said  premises,  and 
for  thirty  days  after  removal,  shall  be  liable  to  distress  for  rent 
and  hereby  waives  the  benefit  of  all  exemption  laws  in  rela- 
tion thereto.  And  said  lessee  further  agrees  that  this  waiver 
shall  extend  and  be  applicable  to  any  process,  execution  or 
executions  that  may  be  issued  in  any  and  all  suits,  actions  or 
proceedings,  for  the  collection  of  rent  due  and  in  arrear,  and 
for  damages  for  the  non-fulfilment  of  any  of  the  covenants 
herein  contained.  And  it  is  further  agreed,  that  if  the  said 
rent  or  grain  shall  at  any  time  be  in  arrear  and  unpaid  or  un- 
delivered, or  if  the  said  lessee  shall  underlet  said  premises  or 
any  part  thereof  or  assign  this  lease,  or  in  case  of  an  assign- 
ment of  the  lease  by  operation  of  law,  or  if  he  shall  use  the 
said  premises  otherwise  than  as  above  expressed  and  pro- 
vided, or  shall  not  well  and  truly  perform  and  fulfil  all  and 
every  the  covenants  and  agreements  herein  contained  on  the 
part  of  the  lessee  to  be  performed  and  kept,  or  in  case  the  les- 
see shall  dife ;  or  in  case  of  a  levy  by  execution  on  the 
lessee's  right  or  interest  in  the  crops,  then  this  lease  shall,  at 
the  option  of  the  said  lessor,  cease  and  absolutely'  determine, 
and  any  attorney  may  immediately  thereafter,  as  attorney  for 
the  said  lessee,  at  the  sole  request  of  the  said  lessor,  sign  an 
agreement  for  entering  in  any  competent  court,  an  amicable 
action  and  judgment  in  ejectment  (without  any  stay  of  exe- 


FORMS.  245 

cution  or  appeal)  against  the  said  lessee  and  all  persons  claim- 
ing under  said  lessee  for  the  recovery  by  the  said  lessor  of 
possession  of  the  hereby  demised  premises,  without  any  lia- 
bility on  the  part  of  the  said  attorney,  for  which  this  shall 
be  a  sufficient  warrant;  and  thereupon  a  writ  of  habere  facias 
posscssionem  may  issue  forthwith  without  any  prior  writ  or 
proceeding  whatsoever,  and  the  lessee  hereby  releases  to  the 
lessor  all  errors  and  defects  whatsoever  in  entering  such  ac- 
tion or  judgment,  or  causing  such  writ  of  habere  facias  pos- 
sessionem  to  be  issued,  or  in  any  proceedings  thereon,  or  con- 
cerning the  same;  and  hereby  agrees  that  no  writ  of  error  or 
objection  or  exception  shall  be  made  or  taken  thereto;  and 
a  copy  of  this  lease  verified  by  affidavit,  being  filed  in  said 
action,  it  shall  not  be  necessary  to  file  the  original  as  a  war- 
rant of  attorney,  any  law  or  rule  of  court  to  the  contrary  not- 
withstanding. No  such  determination  of  this  lease,  nor  tak- 
ing or  recovering  possession  of  the  premises,  shall  deprive  the 
lessor  of  any  other  action  against  the  lessee  for  possession, 
rent,  grain,  or  damages.  All  rights  and  liabilities  herein 
given  to  or  imposed  upon  either  of  the  parties  hereto,  shall 
extend  to  the  heirs,  executors,  administrators,  successors  and 
assigns  of  such  party. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals  this  day  of  ,  one  thousand  nine 

hundred. 

Sealed  and  delivered  in 
the  presence  of 

SEAL. 

SEAL. 

Farm  Lease  on  Shares,  Short  Form. 

510.  This  agreement,  made  this  2Oth  day  of  October,  A.  D. 
1864,  between  J.  J.  Brown,  of  the  one  part,  and  J.  L.  Jaquette. 
of  the  other  part,  as  follows: 

That  for  the  term  of  one  year,  commencing  on  the  first  day 
of  April,  1865,  to  be  fully  completed  on  the  thirty-first  day  of 


246  LANDLORD    AND    TENANT. 

March,  1866,  the  said  Jaquette  for  and  in  consideration  of 
one-half  the  product,  agrees  to  farm  for  the  said  J.  J.  Brown, 
the  land  lately  purchased  by  him  of  John  E.  Morgan,  on  the 
following  terms  and  conditions :  Each  party  is  to  find  one-half 
the  stock,  including  cattle,  poultry,  etc.,  and  one-half  the 
seeds  for  crops.  The  said  Jaquette  to  find  all  the  farming 
implements  and  all  the  working  stock,  and  it  is  distinctly 
understood  that  no  more  of  such  stock  is  to  be  kept  on  the 
place  than  is  absolutely  necessary  for  the  working  thereof. 
The  said  Jaquette  to  find  all  the  requisite  labor,  pay  the  road 
tax  and  one-half  of  all  other  taxes.  He  is  to  submit  to  J.  J. 
Brown  at  the  end  of  every  month  or  three  months,  as  may  be 
agreed  upon,  a  true  and  careful  statement  of  all  receipts  and 
make  settlement  of  the  same.  No  timber  is  to  be  cut  on  the 
premises  without  the  special  direction  of  the  owner.  The 
fences  are  to  be  kept  in  good  repair,  the  weeds  kept  down 
and  the  premises  generally  preserved  in  tidy  and  neat  order. 
J.  J.  Brown  is  to  pay  one-half  the  blacksmith's  and  wheel- 
wright's bill,  and  reserves  for  himself  the  privilege,  should  he 
at  any  time  desire,  of  keeping  on  the  farm,  for  his  own  use, 
one  horse. 

NOTE. — The  above  form  appears  in  the  report  of  the  case  of  Brown  v. 
Jaquette,  94  Pa.  113,  in  which  it  was  held  that  there  was  a  lease  of  the 
farm  on  shares,  and  not  a  partnership;  that  the  interest  of  Jaquette  was 
divested  by  a  sheriff's  sale,  as  well  as  the  right  of  Brown  to  distrain. 

Covenant  that  the  Lessee  shall  Fallow  the  Land,  and  Mow  but  Once 
a  Year,  etc. 

511.  And  also  that  he,  the  said  C.  D.,  his  executors,  admin- 
istrators or  assigns,  shall  not  crop  or  sow  any  part  of  the 
arable  land  which  he  hath  liberty  to  keep  in  tillage  as  afore- 
said, above  two  years  together,  but  every  third  year  permit 
the  same  to  lie  fallow  and  unsown,  and  not  cross-crop  the 
same  or  any  part  thereof;  and  when  and  as  it  shall  be  laid 
down,  shall  and  will  sow  the  same  with  grass  seed  in  a  hus- 
band-like manner,  and  shall  not  mow  or  cause  to  be  mowed, 


FORMS.  247 

any  of  the  meadow  or  pasture  ground  hereby  demised,  more 
than  once  in  any  one  year  of  the  said  term ;  but  shall  and  will, 
during  the  said  term,  plough,  sow,  manure  and  manage  all 
the  ground  hereby  demised  in  a  due  and  regular  course  of 
husbandry,  according  to  the  custom  of  the  country,  and  pre- 
serve all  the  trees,  young  oaks  and  saplings  growing  on  the 
said  premises,  and  not  to  do  or  commit  or  cause  to  be  done 
or  committed,  any  manner  of  waste,  spoil  or  destruction  in 
or  upon  the  said  demised  premises  or  any  part  thereof. 

Covenant  that  Lessee  may  Dispose  of  Hay  and  Straw. 

512.  And  also  that  he,  the  said  C.  D.,  his  executors,  admin- 
istrators or  assigns,  shall  and  may,  at  any  time  during  this  de- 
mise, except  only  in  the  last  year  thereof,  have  liberty  to  dis- 
pose of  any  quantity  of  the  hay  and  straw  arising  from  the 
said  premises,  on  bringing  and  laying  upon  the  same  prem- 
ises, where  most  need  requires,  one  good  load  of  rotten  dung 
for  every  load  of  hay  or  straw  so  sold  and  disposed  of. 

Covenant  to  Lay  Down  Part  of  the  Ground  with  Clover,  etc. 

513.  And  also  that  he,  the  said  C.  D.,  his  executors,  ad- 
ministrators or  assigns,  shall  and  will,  the  summer  preceding 
the  expiration  or  other  sooner  determination  of  this  demise, 
summer-fallow  twenty-five  acres  of  such  part  of  the  arable 
land  hereby  demised,  as  shall  be  then  in  course,  in  a  husband- 
like  manner,  fit  to  be  sown  with  a  crop  the  ensuing  season, 
and  also  lay  down  with  clover  seed  and  rye  grass,  twenty- 
five  acres  more  of  the  arable  land  hereby  demised,  which  shall 
be  then  in  tillage  and  sow  upon  each  acre  thereof  ten  pounds 
of  the  best  clover  seed  and  two  bushels  of  the  best  rye  grass 
seed. 

That  the  Lessee  shall  Use  the  Hay,  Dung,  etc.,  on  the  Premises. 

514.  And  also  that  he,  the  said  C.  D.,  his  executors,  admin- 
istrators or  assigns,  shall  and  will,  during  the  continuance  of 
this  demise,  use  and  spread  on  the  said  demised  premises,  all 


248  LANDLORD  AND  TENANT. 

the  hay  and  straw  arising  therefrom,  and  all  the  compost  and 
dung  which  shall  be  made  thereby  shall  spread  and  bestow 
upon  the  said  premises  in  a  husband-like  manner,  save  only 
the  compost  or  dung  to  be  made  in  the  last  year  of  his  de- 
mise, which  the  said  C.  D.,  his  executors,  administrators  or 
assigns  shall  leave  upon  the  said  premises,  unto  and  for  the 
said  A.  B.  or  his  assigns,  if  then  living,  but  in  case  of  his 
decease,  to  and  for  such  other  person  or  persons  as  shall  then 
be  entitled  to  the  freehold  and  inheritance  of  the  said  premises 
without  being  paid  or  allowed  anything  for  the  same. 

Fire  Clause  for  Farm  Lease,  No.  1. 

515.  It  is  hereby  mutually  agreed  and  provided  that  in  case 
the  dwelling  house  or  barn  on  the  demised  premises,  by  rea- 
son of  fire  or  other  casualty,  shall  be  totally  destroyed  or 
rendered  unfit  for  continued  occupancy,  then  the  said  lease 
shall  continue  until  the  maturity  of  the  crops  the  lessee  may 
have  planted  on  said  premises  and  until  the  expiration  of  a 
reasonable  time  for  harvesting  such  crops  and  taking  the 
same  away,  and  the  lease  shall  then  terminate  and  rent  shall 
be  apportioned  and  paid  to  that  time,  but  the  lessee  shall 
be  allowed  and  have  deducted  from  his  rent  the  rental  value  of 
such  portions  of  the  demised  premises  as  he  shall  be  deprived 
of  by  such  fire  or  casualty.  Provided,  however,  that  in  such 
case  the  lessor  shall  have  the  right  at  any  time  after  the 
fire  or  casualty  to  enter  said  premises  with  his  employes, 
contractors,  workmen,  materials  and  vehicles  and  to 
rebuild  the  building  or  buildings  destroyed  or  damaged  by 
such  fire  or  casualty,  which  shall  then  become  the  property  of 
the  lessor  free  from  any  rights  of  the  lessee  to  the  same,  and 
the  lessor  may,  at  any  time,  rent  such  buildings  again  to  the 
said  lessee  or  any  other  party.  And  it  is  hereby  agreed  that 
in  case  of  a  partial  destruction  or  damage  of  the  dwelling 
house  and  barn  or  either  of  them,  by  fire  or  other  casualty,  so 
that  they  can  both  be  continued  to  be  occupied,  then  the  les- 
sor shall,  with  the  least  possible  delay,  have  the  said  premises 


FORMS.  249 

restored  to  the  same  condition  as  before  such  loss  or  damage 
by  fire  or  other  casualty ;  but  said  lessee  shall  be  allowed  and 
have  deducted  from  his  rent  the  rental  value  of  such  parts  of 
the  demised  premises  as  he  shall  be  deprived  of  until  such 
repairs  are  completed. 

Fire  Clause  for  Farm  Lease,  No.  2. 

516.  It  is  hereby  mutually  agreed  and  provided  that  in  case 
of  a  total  destruction  of  the  dwelling  house  or  barn,  or  in  case 
that  either  of  them  shall  become  untenantable  or  unfit  for 
occupancy  by  reason  of  fire  or  other  casualty,  then  this  lease 
shall  terminate  on  the  date  of  such  fire  or  casualty,  and  the 
rent  shall  be  apportioned  and  paid  to  that  date ;  but  if  in  any 
such  case  the  lessee  shall  have  any  crops  planted  or  growing 
in  said  farm,  they  shall  belong  to  the  said  lessee,  who  shall 
have  the  right  to  cultivate,  harvest  and  take  them  away  in 
the  proper  season,  but  for  such  continued  partial  use  and  oc- 
cupation, the  said  lessee  shall  pay  the  lessor  such  a  reasonable 
sum  as  may  be  agreed  upon  by  the  parties,  but  in  case  they 
cannot  or  will  not  so  agree,  then  each  party  shall  choose  an 
arbitrator  to  fix  such  amount,  but  if  the  arbitrators  cannot 
or  will  not  agree,  they  shall  choose  a  third  arbitrator  to  act 
with  them,  and  the  decision  shall  be  by  a  majority  of  the 
arbitrators,  which  decision  shall  be  final  and  conclusive  upon 
the  parties. 

Fire  Clause  for  a  Dwelling. 

517.  It  is  hereby  agreed  that  if  the  dwelling  on  the  demised 
premises  shall  be  wholly  destroyed  or  damaged  by  fire  or 
other  casualty  or  shall  be  partially  destroyed  or  damaged  by 
fire  or  other  casualty,  so  that  the  same  cannot  be  continuously 
occupied,  then,  and  in  either  such  case,  the  lease  shall  termi- 
nate on  the  date  of  such  fire  or  casualty,  and  the  rent  shall 
be  apportioned  and  paid  to  that  date ;  but  in  case  of  a  partial 
loss  or  damage  so  that  the  said  dwelling  can  be  continuously 
occupied  whilst  repairs  are  being  made,  then  the  lease  shall 


250  LANDLOKD  AND  TENANT. 

be  continued  and  the  said  lessor,  with  workmen  and  others, 
at  seasonable  times  in  the  daytime,  may  enter  said  building 
and  premises  and  shall  repair  and  amend  the  said  building  at 
his  own  cost  and  expense  as  soon  as  the  same  can  be  prac- 
tically done,  and  in  case  of  such  continued  occupancy,  the 
lessee  shall  be  allowed  and  have  deducted  from  his  rent,  such 
part  thereof  as  shall  compensate  him  for  being  deprived  of 
any  portions  of  the  building  or  premises  until  repairs  are 
made;  such  compensation,  however,  being  rated  and  esti- 
mated only  according  to  the  rental  value  of  such  portions 
during  the  deprivation  thereof. 

fire  Clause  for  a  Business  Property. 

518.  It  is  hereby  agreed  that  if  the  building  on  the  demised 
premises  shall  be  wholly  destroyed  or  damaged  by  fire  or 
other  casualty,  or  in  case  the  said  building  shall  be  partially 
destroyed  or  damaged  by  fire  or  other  casualty,  and  such  par- 
tial destruction  or  damage  shall  be  so  great,  to  such  an  extent 
or  of  such  a  nature  or  character,  as  to  prevent  the  occupation 
or  the  continuation  of  business  on  the  demised  premises;  or  if 
the  destruction  or  damage  of  the  property  of  the  lessor  or  les- 
see in  said  building  by  such  fire  or  casualty,  shall  be  so  great, 
to  such  extent  or  of  such  a  nature  as  to  prevent  the  continua- 
tion of  said  business  at  an  early  date  or  profitably;  then  in 
either  such  case  of  total  or  partial  destruction  or  damage, 
this  lease  shall  terminate  at  the  date  of  such  fire  or  casualty, 
and  the  rent  shall  be  apportioned  and  paid  to  that  date ;  but 
otherwise  and  in  case  of  a  partial  destruction  or  damage  of 
said  building  or  the  contents,  by  fire  or  other  casualty,  so  that 
the  same  can  be  continued  to  be  occupied  and  said  business 
can  be  continued  profitably,  then  this  lease  shall  be  con- 
tinued and  the  lessor,  with  his  workmen  and  others,  may 
enter  said  premises  at  reasonable  times,  during  working 
hours,  to  repair  said  building,  and  the  said  lessor  shall,  with 
due  diligence,  at  his  own  cost  and  expense,  repair  said  prem- 
ises and  the  lessee  shall  be  allowed  and  have  deducted  from 


FORMS.  251 

his  rent  such  an  amount  as  will  compensate  him  for  being  de- 
prived of  any  portions  of  said  premises  whilst  repairs  are  be- 
ing made ;  such  compensation  to  be  rated  and  estimated,  how- 
ever, only  according  to  their  rental  value. 

To  Protect  against  Assignment  of  Lease. 

519.  It  is  hereby  agreed  that  this  lease  or  any  continua- 
tion or  extension  thereof,  expressly  or  impliedly,  shall  not, 
without  the  written  consent  of  the  lessor,  or  his  successor  in 
title,  be  sold,  assigned,  transferred  or  mortgaged  by  the  les- 
see, or  his  successor  in  title,  or  by  reason  of  his  or  their  death, 
bankruptcy  or  insolvency,  or  by  execution,  by  attachment, 
by  operation  of  law,  or  by  any  legal  or  equitable  proceedings 
whatever  in  any  way  or  manner,  and  upon  any  of  such  oc- 
currences happening,  this  lease  shall,  at  the  option  of  the 
lessor,  his  heirs  and  assigns,  terminate,  and  upon  such  termi- 
nation, the  rent  shall  be  apportioned  and  paid  to  the  lessor 
and  his  successors  to  the  date  of  any  such  occurrences,  and 
possession  can  be  recovered  by  the  amicable  ejectment  pro- 
ceedings hereinafter  mentioned ;  and  it  is  further  agreed  that 
any  consent  of  the  lessor,  his  heirs  or  assigns,  to  any  assign- 
ment of  this  lease,  shall  not  obviate  the  necessity  of  obtaining 
consent  to  any  future  assignments;  and  the  rights  of  the  les- 
sor, his  heirs  and  assigns,  to  terminate  the  lease  shall  not  be 
lost  or  waived  by  the  receipt  of  rent  or  any  other  act,  ex- 
cepting written  consent  aforesaid;  and  this  clause  against  as- 
signments shall  extend  to  and  bind,  not  only  the  lessee,  but  all 
persons  claiming  by,  through  or  under  him,  or  under  this 

lease. 

r 

"For  Insertion  after  Ejectment  Clause. 

520.  [Clause  to  be  inserted  after  an  ejectment  clause.]    It 
is  agreed  that  the  lessee  shall  not  make  any  defence  to  the 
proceedings  or  judgment  in  ejectment  above  provided  or  to 
any  proceedings  in  relation  thereto,  by  reason  of  any  rent  not 
having  been  demanded  or  collected  when  due,  or  any  habit 


252  LANDLORD  AND  TENANT. 

or  custom  in  collecting  or  receiving  rent  after  the  same  shall 
fall  due,  or  by  reason  of  any  act  or  acts  of  the  lessor  by  the 
receipt  of  rent  or  otherwise,  which  might  be  a  waiver  of  his 
rights  to  said  ejectment  proceedings,  or  by  reason  of  any 
misdescription  or  inadequate  description  of  the  demised 
premises  in  said  proceedings;  and  that  the  above  ejectment 
clause  shall  run  and  be  binding  upon  and  operative  against 
any  person  or  persons,  company  or  corporation  who  may  be- 
come a  tenant  under  this  lease,  or  any  renting  thereunder,  or 
under  the  terms  thereof,  by  assignment,  operation  or  implica- 
tion of  law,  or  otherwise ;  and  further,  no  objection  shall  be 
made  by  reason  of  the  joinder  of  improper  parties  in  the 
ejectment  proceedings,  or  by  reason  of  the  lessor  not  having 
given  to  the  lessee  any  notice  before  proceedings  in  eject- 
ment, and  all  agreements  for  said  ejectment  proceedings  shall 
run  with  the  land  and  be  for  the  benefit  of  the  lessor  and 
against  the  lessee  and  their  respective  successors  in  title. 

Giving  an  Option  to  Purchase. 

521.  It  is  hereby  agreed  that  the  lessee  shall  have  the  op- 
tion to  purchase  the  said  demised  premises  [here  give  a  par- 
ticular description  of  the  premises  if  general  description  in- 
definite in  lease]  at  any  time  during  the  existence  of  any  ten- 
ancy express  or  implied  under  this  lease  for  the  price  or  sum 
of  $  in  the  following  manner,  viz. :  $  to  be  paid 

in  cash  upon  the  execution  and  delivery  of  the  deed  and  the 
balance  thereof  $  is  to  be  paid  at  the  expiration  of  five 

years  from  the  execution  and  delivery  of  the  deed,  with  in- 
terest at  the  rate  of  five  per  cent,  per  annum,  payable  half 
yearly,  and  the  payment  of  which  balance  shall  be  secured 
upon  the  said  premises  by  a  purchase-money  mortgage  with 
bond  and  warrant  of  the  said  lessee  of  the  usual  form,  and 
the  said  lessee  shall  assign  to  the  said  lessor  a  perpetual  fire 
insurance  of  said  premises  for  the  sum  of  $  as  col- 

lateral security  for  the  payment  of  the  said  mortgage  debt, 
and  upon  the  said  lessee  giving  written  notice  to  the  said  les- 


FORMS.  253 

sor  of  the  exercise  of  his  said  option  and  offering  and  agree- 
ing to  purchase  said  premises  upon  the  said  terms,  then  the 
said  lessor  and  his  wife  shall  and  will  sell,  grant  and 

convey  the  said  premises  to  the  said  lessee  upon  said  terms. 
It  being  hereby  agreed  and  provided  that  the  lessee  shall  re- 
main as  lessee  under  said  lease  and  letting  until  the  execution 
and  delivery  of  the  deed  of  conveyance.  The  said  wife  of  the 
said  lessee  has  signed  and  acknowledged  this  lease  with  her 
husband  so  that  the  lessee  in  case  he  shall  purchase  shall  have 
a  title  free  of  her  interest. 

Surety  for  Tenant. 

522.  I,  A.  B.,  do  hereby  agree  to  be  responsible  as  surety 
to  C.  D.  or  his  assigns,  for  the  true  and  faithful  performance 
of  the  above-named  contract  on  the  part  of  E.  F.,  and  this 
obligation  shall  extend  to  and  bind  the  executors  and  ad- 
ministrators of  the  said  A.  B.,  and  shall  extend  to  and  be  for 
the  benefit  of  C.  D.,  his  heirs,  assigns  and  successors  in  title, 
and  as  long  as  the  above  lease  and  any  letting  thereunder 
shall  continue. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal, 
the  day  of  one  thousand  nine  hundred. 

Sealed  and  delivered  in  the 
presence  of 

SEAL. 

Assignment  of  Lease. 

523.  This  indenture,  made  the  day  of  ,  A.  D. 
1900,  between  A.  B.,  of            ,  of  the  first  part,  and  C.  D.,  of 

,  of  the  second  part,  Witnesseth  that  the  said  A.  B.  for 
.and  in  consideration  of  the  sum  of  dollars,  to  him  in  hand 
paid  by  the  said  CD., at  and  before  the  ensealing  and  delivery 
of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, hath  granted,  bargained,  sold,  assigned,  transferred 
and  set  over  and  by  these  presents  doth  grant,  bargain,  sell, 
assign,  transfer  and  set  over  unto  the  said  C.  D.,  his  ex- 
ecutors, administrators  and  assigns  a  certain  lease,  bearing 


254  LANDLORD  AND  TENANT. 

date  the  ist  day  of  January,  1895,  made  between  E.  F.,  of  the 
one  part,  and  the  said  A.  B.,  of  the  other  part,  of  the  prem- 
ises [here  briefly  describe  the  premises]  for  the  term  of 
years  at  and  under  the  rent  of  per  annum.     Together 

with  the  said  premises  and  all  the  rights  and  privileges  of  the 
said  A.  B.  to  the  same  and  by  and  under  said  lease.  To  have 
and  to  hold  the  said  premises  and  every  part  thereof  with  the 
appurtenances  unto  the  said  C.  D.,  his  executors,  administra- 
tors and  assigns,  for  and  during  all  the  rest,  residue  and  re- 
mainder yet  to  come  and  unexpired  of  the  said  term  of  years, 
in  as  full,  large  and  ample  a  manner  to  all  intents  and  pur- 
poses as  the  said  A.  B.,  his  executors,  administrators  or  as- 
signs now  holds  or  may  at  any  time  hold,  and  enjoy  the 
same  by  virtue  of  the  said  lease.  Subject,  nevertheless,  to 
the  several  rents,  covenants,  conditions  and  agreements  in  the 
said  lease  reserved  and  contained. 
In  witness,  etc. 

SEAL. 
Surrender  of  Lease. 

524.  Know  all  men  by  these  presents  that  the  undersigned 
A.  B.  doth  hereby,  on  the  date  hereof,  surrender  and  yield 
up  to  C.  D.  the  lease  made  by  the  said  C.  D.  to  the  said  A.  B., 
dated  the  day  of  ,  A.  D.  1885,  for  premises  [here 
describe  the  premises]  and  the  possession  of  the  said  prem- 
ises; and  the  said  C.  D.,  in  consideration  thereof  doth  hereby 
accept  the  said  surrender  and  possession. 

Witness  the  hands  and  seals  of  the  said  parties  this 
day  of  ,  A.  D.  1900. 

Witnesses: 

SEAL. 

SEAL. 
Distress  Warrant. 

525.  To  ,  constable  of 

WHEREAS,  C.  D.  is  indebted  to  me  in  the  sum  of 
dollars  and  cents  for  the  rent  of  [here  briefly  describe 

the  premises]   due  on  the  day  of  ,  A.  D.  1899, 


FORMS. 


255 


you  are  hereby  authorized  and  empowered  to  collect  the  said 
amount  of  rent,  by  distraining  the  goods  and  chattels  in  and 
on  said  premises,  according  to  the  acts  of  assembly  in  such 
case  made  and  provided ;  and  to  proceed  to  sell  the  same  ac- 
cording to  law,  for  the  best  price  that  can  be  obtained  for 
the  same,  returning  the  overplus  if  any,  to  the  said  C.  D.  after 
paying  the  said  rent  and  all  legal  costs  and  charges  of  such 
distress. 

Witness  my  hand  and  seal  this  ist  day  of  January,  1900. 

A.  B.     SEAL. 

By  virtue  of  the  above  landlord's  warrant,  I  do  levy  on 
the  following  goods,  being  on  the  premises,  to  wit : 

One  piano. 
One  carpet.    . 

O.  P.,  Constable. 
January  I,  1900. 


By  virtue  of  a  landlord's  war- 
rant to  me  directed  and  dated  the  ist 
day  of  January,  1900,  for  the  sum  of 
dollars  I  do  hereby  levy  on 
the  following  goods,  being  on  the 
premises  therein  described. 

Debt,   $ 


Notice  of  Distraint. 
526. 

A.  B. 

V. 

CD. 

To  wit : 

One  piano. 
One  carpet. 
To  C.  D. 

Take  notice,  that  by  authority  and  on  behalf  of  your  land- 
lord, A.  B.,  I  have  this  day  distrained  the  several  goods  and 
chattels  specified  in  the  above  schedule,  on  the  premises  situ- 
ate for  the  sum  of  dollars,  rent  due  to  him, 
the  said  A.  B.,  as  aforesaid,  and  if  you  do  not  pay  the  said 


256  LANDLORD  AND  TENANT. 

rent  so  due  and  in  arrear  as  aforesaid,  or  replevy  the  same 
goods  and  chattels  according  to  law,  within  five  days  here- 
after, I  shall,  after  the  expiration  of  the  said  five  days  from 
the  date  hereof,  cause  the  said  goods  and  chattels  to  be  ap- 
praised and  sold  according  to  the  act  of  assembly  in  such  case 
made  and  provided. 

Given  under  my  hand  the  1st  day  of  January,  1900. 

O.  P.,  Constable. 

Affidavit  of  Appraisers  and  Appraisement. 

527.  We,  G.  W.  and  T.  J.,  being  duly  say  that  we 

will  well  and  truly,  according  to  the  best  of  our  understand- 
ing, appraise  the  goods  and  chattels  of  C.  D.,  distrained  for 
rent  by  A.  B. 

and  subscribed  before  me 
this  day  of  A.  D.  1900. 

G.  W. 
T.  J. 

Appraisement  of  the  goods  and  chattels  of  the  above- 
named  C.  D. : 

One  piano,    $250 

One  carpet, 50 


$300 
day  of  ,  A.  D.  1900. 

G.  W. 
T.J. 

Consent  of  Tenant  to  Permit  Distrained  Ooods  to  Remain. 

528.  I,  C.  D.,  do  hereby  consent  that  A.  B.,  my  landlord, 
shall  continue  in  possession  of  my  goods  and  chattels  on  my 
premises,  upon  which  he  has  distrained  for  rent,  for  the  space 
of  days  from  the  date  hereof,  he  at  my  request  having 

agreed  to  extend  the  time  of  sale  of  said  goods  and  chattels 
until  that  time. 

Dated  the  day  of  A.  D.  1900. 

C.  D. 


FORMS,  257 

Notice  of  Constable's  Sale. 

529.  Will  be  sold  at  public  vendue,  on  the  day  of 
A.  D.  1900,  at  [briefly  describe  place  of  sale]  the  fol- 
lowing goods  and  chattels,  distrained  for  rent  as  the  property 
of  C.  D.,  that  is  to  say : 

One  piano. 
One  carpet. 

O.  P.,  Constable. 

Claim  for  Benefit  of  Exemption  Law. 

530.  To  ,  constable. 

Sir: — Please  take  notice  that  as  to  the  distraint  of  A.  B. 
upon  my  goods  for  rent,  I  claim  the  benefit  of  the  act  of  as- 
sembly, approved  the  Qth  day  of  April,  A.  D.  1849,  entitled, 
"An  act  to  exempt  property  to  the  value  of  three  hundred 
dollars  from  levy  and  sale  on  execution  and  distress  for  rent." 
And  that  I  desire  appraisers  summoned  and  an  appraisement 
made  of  the  goods  elected  to  be  retained  by  me  under  and 
according  to  said  act. 

CD. 

Summons  of  Appraisers. 

531.  To  M.  N.,  G.  H.,  K.  L. 

You  are  hereby  summoned  to  appraise,  after  having  been 
duly  sworn  or  affirmed,  the  goods  of  C.  D.,  distrained  upon 
for  rent  due  to  A.  B.,  which  he  may  elect  to  retain  to  the  value 
of  three  hundred  dollars  under  the  exemption  law. 

O.  P.,  Constable. 

Affidavit  of  Appraisers  and  Election. 

532.  We,  the  subscribers,  having  been  summoned  by  O. 
P.,  constable,  to  appraise  the  goods  of  C.  D.,  distrained  upon 
for  rent  due  A.  B.,  and  which  the  said  C.  D.  may  elect  to 

retain,  under  the  exemption  law  of  1849,  being  duly  sworn 
17 


258  LANDLORD    AND   TENANT. 

or  affirmed,  say  that  we  will  well  and  truly  appraise  the 

same. 

M.  N., 

G.  H., 
K.  L. 

Sworn  to  or  affirmed  before  me 
this  day  of  A.  D.  1900. 

To  M.  N.  I 

G.  H.  >  Appraisers. 
K.  L.J 

Sirs: — Please  notice  that  I  hereby  elect  to  retain  the  fol- 
lowing goods  to  be  exempted  under  the  $300  exemption  law. 
Viz. :  One  piano. 
One  carpet,  etc. 

CD. 

Appraisement  of  Exempted  Goods. 

533-  We,  the  subscribers,  the  appraisers  appointed  to  ap- 
praise the  goods  of  C.  D.,  distrained  upon  by  A.  B.  for  rent, 
and  claimed  by  the  said  C.  D.  as  exempt  under  the  $300  ex- 
emption law,  and  having  been  respectively  sworn  or  affirmed, 
do  value  and  appraise  the  same  as  follows : 

One  piano, $250 

One  carpet, 50 


$300 
Appraised  the  day  of  19     . 

M.  N. 
G.  H. 

K.  L. 
Amicable  Action  and  Judgment  in  Ejectment. 

534- 

I  In  the  Court  of  Common  Pleas  of 
V.  r  •« 

r   TI     j  r     A  county,  Pa. 

C.  D.,  defendant.      ) 

Amicable   Action   and   Confession   of  Judgment   in   Eject- 
ment by  a  provision  in  a  lease. 


FORMS.  259 

WHEREAS,  the  above-named  A.  B.,  by  a  certain  lease  dated 
the  first  day  of  January,  1900,  leased  and  demised  to  the  said 
C.  D.  [here  describe  premises  as  in  the  lease],  said  lease  is 
hereunto  annexed  and  made  a  part  of  this  document.  And 
whereas,  the  said  C.  D.  entered  into  possession  of  said  prem- 
ises under  the  said  lease  as  tenant  thereunder  and  is  still  in 
possession  of  the  same.  It  is  hereby  agreed  that  an  amicable 
action  in  ejectment  be  entered  by  the  prothonotaryof  the  court 
of  common  pleas  of  county, as  if  a  summons  in  ejectment 
had  been  issued  by  A.  B.,  the  said  plaintiff,  against  C.  D.,  the 
said  defendant,  for  [here  describe  the  property  as  in  the  lease, 
and  if  not  described  according  to  a  street  number  in  a  city  or 
town,  or  by  metes  and  bounds,  describe  the  premises  more  par- 
ticularly ;  for  example  say :  and  which  premises  are  more  par- 
ticularly described  as  follows,  viz. :  All  that  certain  three-story 
brick  dwelling  house  and  lot  of  ground  on  which  the  same  is 
erected,  situate  on  the  south  side  of  Washington  street,  fifteen 
feet  westward  from  the  west  side  of  Front  street,  in  the  city 
of  Philadelphia,  containing  in  front  on  Washington  street 
fifteen,  feet  and  extending  of  that  width  southward  between 
parallel  lines  at  right  angles  with  said  Front  street  sixty  feet ; 
or  as  follows,  viz. :  All  that  certain  tract  of  land  and  farm  with 
the  buildings  and  improvements  thereon  erected,  situate  on 
the  west  side  of  road,  between  road  and 

road,  in  township,  in  the  county  of  ,  in  the  state 

of  Pennsylvania,  containing  acres,  and  bounded  on  the 

east  by  said  road,  on  the  north  by  land  of  ,  on 

the  west  by  land  of  ,  and  on  the  south  by  land  of  ] 

and  as  if  said  summons  in  ejectment  had  been  issued  and 
made  returnable  to  the  Monday  of  ,  1900, 

and  had  been  duly  returned  "served"  by  the  sheriff  upon  the 
said  C.  D.  And  the  said  C.  D.  hereby  confesses  judgment 
in  ejectment  for  said  premises  in  favor  of  said  A.  B.,  plaintiff, 
without  any  stay  of  execution,  appeal,  writ  of  error  or  objec- 
tion or  exception.  This  judgment  is  entered  under,  by  virtue 
of  and  in  pursuance  of  an  agreement  and  provision  in  the 


260  LANDLORD  AND  TENANT. 

said  lease  and  upon  the  determination  of  the  lease  by  reason 
of  the  said  C,  D.  not  having  paid  to  A.  B.  the  following  rent 
under  said  lease,  due  as  follows,  viz.:  one  month's  rent,  due 
day  of  ,  A.  D.  1900,  $25,  but  in  permitting  the 

same  to  be  in  arrears  and  unpaid,  whereby  the  said  lease  has 
absolutely  ceased  and  determined,  G.  H.,  as  attorney  for  C. 
D.,  has  signed  this  agreement  tinder  and  by  virtue  of  the 
authority  in  said  lease. 

E.  F.,  attorney  for  A.  B.,  the  plaintiff. 
G.  H.,  attorney  for  C.  D.,  the  defendant. 

County  of  Philadelphia,  ss. 

A.  B.,  being  duly  sworn,  doth  depose  and  say,  that  the  facts 
set  forth  in  the  above  agreement  are  true;  that  the  lease  re- 
ferred to  in  the  agreement  is  annexed  thereto ;  that  the  above- 
named  C.  D.  has  not  paid  to  this  deponent  $25,  one  month's 
rent  due  under  said  lease  and  which  became  due  on  the 
day  of  A.  D.  1900,  and  that  said  rent  is,  remains 

and  now  is  wholly  unpaid  and  the  said  C.  D.  is  indebted  to 
this  deponent  for  the  same. 

A.  B. 

Sworn  and  subscribed,  etc. 

Notice  to  Quit  for  Non- Payment  of  Bent  under  Act  of  1830. 

535.  Philadelphia,  ,  19     . 

To  : 

You  are  hereby  notified  to  quit  the  premises  situate 
which  I  have  leased  to  you,  reserving  rent — "or  pay  and  sat- 
isfy the  rent  due  and  in  arrear,"  being  $  ,  which  amount 
was  due  on  the  day  of  ,  19  ,  and  is  hereby  de- 
manded— (you  having  neglected  or  refused  to  pay  the  amount 
so  reserved,  as  often  as  the  same  has  grown  due,  according  to 
the  terms  of  our  contract — and  there  being  no  goods  on  the 
premises  adequate  to  pay  the  rent  so  reserved,  except  such 
articles  as  are  exempt  from  levy  and  sale  by  the  laws  of  this 
commonwealth)  within  fifteen  days  [or  thirty  days,  accord- 


FORMS.  261 

ing  to  the  time  of  year]  from  the  date  hereof,  or  I  shall  pro- 
ceed against  you  as  the  law  directs. 

Respectfully  yours, 

Complaint. 

536.  County  of  ss. 

On  this  day  of  ,  A.  D.  19     ,  personally  ap- 

peared before  me,  one  of  the  in  said  county, 

who,  being  duly  sworn  according  to  law,  saith :  That  he  de- 
mised the  premises  situate  to  a  certain  for  the 
term  of  reserving  rent;  that  the  said  rent  is  in  arrear 
and  unpaid;  that  there  are  not  sufficient  goods  and  chattels 
on  the  premises  to  pay  and  satisfy  the  said  rent,  except  such  as 
are  by  law  exempt  from  levy  and  sale,  and  that  the  said 
lessee  has  (after  being  notified  to  quit  the  said  premises 
within  days  from  the  date  of  said  notice)  refused  to 
render  and  deliver  up  possession  of  the  said  premises. 

SEAL. 

Sworn  and  subscribed  before 
me,  19     . 

Summons. 

537.  City  of  Philadelphia,  ss. 

The  Commonwealth  of  Pennsylvania,  to  any  constable  of 
said  city,  greeting: 

WHEREAS,  Complaint  on  oath  or  affirmation  hath  been 
made  before  me,  the  Subscriber,  Magistrate  of  Court  No. 

,  of  said  city  by  that  demised  to 

the  premises  situate  No.  street,  in  said  city,  reserving 

rent,  which  rent  is  in  arrear  and  unpaid,  and  there  are  not 
sufficient  goods  and  chattels  on  the  premises  to  pay  and 
satisfy  the  said  rent,  except  such  as  are  by  law  exempted 
from  levy  and  sale ;  and  that  the  said  lessee  has,  after  being 
notified  according  to  law,  refused  to  pay  the  rent  in  arrear 
or  remove  and  re-deliver  up  possession  of  the  premises : 

You  are  therefore  hereby  commanded  to  summon  the  said 


262  LANDLORD    AND    TENANT. 

to  be  and  appear  before  the  said  magistrate,  at  his  court, 
on  the  day  of  ,  A.  D.  19         ,  between  the 

hours  of  o'clock  M.,  and  o'clock  M., 

to  answer  the  said  complaint. 

Witness  our  said  magistrate  and  the  official  seal  of  the 
said  court,  the  day  of  ,  A.  D.  19  . 

Magistrate  of  Court  No. 

Writ  of  Restitution. 

538.  County  of  ss. 

The  Commonwealth  of  Pennsylvania,  to  any  constable  of 
the  said  county,  greeting : 

WHEREAS,  proof  was  made  on  the  day  of 

19     ,  before  ,  one  of  in  said  county,  That 

rented  to  a  certain  tenement,  situated  in  the  rent 

whereof  is  in  arrear  and  unpaid;  that  there  are  not  sufficient 
goods  and  chattels  on  the  premises  to  pay  and  satisfy  the  said 
rent,  except  such  as  are  by  law  exempt  from  levy  and  sale, 
and  that  the  said  lessee  has,  after  being  legally  notified, 
refused  to  remove  and  re-deliver  up  possession  of  the 
premises,  according  to  the  act  of  assembly  in  such  case  made 
and  provided,  and  whereon  the  said  in  consideration 

of  the  premises,  did  enter  judgment  against  said  lessee    that 
said  premises  should  be  delivered  up  to  the  lessor,  and  did 
also  ascertain  the  amount  of  rent  in  arrear  to  be 
dollars. 

Therefore  we  command  you  forthwith  to  deliver  actual 
possession  of  said  premises  to  the  lessor,  and  we  also  com- 
mand you  that  you  levy  the  costs  indorsed  hereon  on  the 
goods  and  chattels  of  the  said  and  of  your  proceed- 

ings herein  make  return  to  the  said  within  ten  days 

after  your  receipt  of  this  writ,  to  wit:  on  the  day  of 

19     . 

In  witness  whereof,  the  said  hath  hereunto  set  his 

hand  and  seal  the  day  of  ,  A.  D.  19     . 

SEAL. 


FORMS.  263 

Record. 

539- 

Landlord  and  tenant  case. 

A.  B.  On  the  day  of  A.  D.         , 

v.  A.  B.,  the  plaintiff,  appears  and  com- 

C.  D.  plains,  on  oath,  that  on  the  day 

of  A.  D.  he  demised  to  C. 

Costs.  D.,  the  defendant  (here  describe  prem- 

ises), for  the  term  of  at  the  rent 

of  per  annum,  payable  quarterly;  that  on  the 

day  of  A.  D.  the  amount  of  dollars  of  said 

rent  due,  according  to  the  terms  of  said  demise,  on  the 
day  of  A.  D.  ,  was  in  arrear  and  unpaid;  that  on 

the  day  of  A.  D.  ,  he  notified  the  said  de- 

fendant, C.  D.,  that  such  amount  of  rent  was  due,  and  de- 
manded payment  thereof,  or  in  default  that  the  said  defend- 
ant should  quit  the  said  premises  within  days  from  the 
service  of  said  notice;  that  there  are  not  on  the  said  premises 
sufficient  goods,  etc.,  exempted  from  levy  and  sale;  and  that 
the  said  defendant,  after  being  so  notified,  has  refused  to  de- 
liver possession  of  said  premises  to  said  A.  B.  Same  day,  sum- 
mons issued  returnable  .  E.  F.,  constable.  Returned  on 
oath,  "Served  by  delivering  a  true  copy  to  the  said  defendant 
personally  upon  the  premises  on  the  day  of  A.  D. 

.".    The  day  of          ,  A.  D.  ,  parties  appear. 

G.  H.  sworn  for  plaintiff.  Whereupon,  on  hearing,  it  ap- 
pearing that  the  above  complaint  is  in  all  particulars  just  and 
true,  judgment  is  entered  against  the  said  defendant,  that  he 
deliver  actual  possession  of  the  premises  to  the  plaintiff;  and 
it  is  ascertained  that  the  rent  due  to  the  plaintiff  is 
The  day  of  A.  D.  ,  writ  of  possession  is- 

sued.    Returnable  the  day  of  ,  A.  D.  , 

Possession  given  the  day  of  ,  A.  D. 

;  T.  J.,  Constable. 


264  LANDLORD  AND  TENANT. 

Notices  to  Quit  at  End  of  Lease. 

540.  To  A.  B.:  You  are  hereby  notified  and  required  to 
quit  and  deliver  up  to  me  possession  of  the  premises  (describ- 
ing them),  which  you  hold  as  tenant  under  me,  upon  the 
expiration  of  your  lease,  viz. :  the  day  of  A.  D. 

,  as  I  desire  to  have  again  and  repossess  the  same. 

C.  D. 

NOTE. — It  is  suggested  that  the  above  notice  can  be  given  under  either 
the  act  of  1772  or  1863  when  there  is  a  certain  term  and  when  the  notice 
shall  be  given  three  months  before  the  end  of  the  term. 

To  A.  B.:  You  are  hereby  notified  and  required  to  quit 
and  deliver  up  to  me  possession  of  the  premises  (describing 
them),  which  you  hold  as  tenant  under  me  from  year  to  year, 
at  the  end  of  your  current  term,  viz. :  the  day  of 

A.  D.  ,  as  I  desire  to  have  and  repossess  the  same  and 

to  terminate  the  tenancy  at  that  time. 

C.  D. 

NOTE. — It  is  suggested  that  the  above  notice  can  be  given  under  either 
of  said  acts  when  served  three  months  before  the  expiration  of  the  current 
year  if  there  is  a  yearly  tenancy. 

To  A.  B.:  You  are  hereby  notified  and  required  to  quit 
and  deliver  up  to  me  possession  of  the  premises  (describe 
them),  which  you  hold  under  me  as  tenant  from  month  to 
month,  at  the  end  of  the  monthly  term  which  will  expire  on 
the  day  of  A.  D.  ,  as  I  desire  to  have  again 

and  repossess  the  same  and  to  terminate  the  monthly  tenancy 
at  that  time. 

C.  D. 

NOTE. — It  is  suggested  that  the  above  notice  can  be  given  under  a 
monthly  tenancy.  Under  the  act  of  1863  three  months'  notice  must  be 
given  before  the  end  of  the  lease,  and  where  there  is  a  monthly  tenancy  the 
notice  to  quit  must  necessarily  be  given  three  months  before  the  termina- 
tion of  a  future  monthly  tenancy.  This  course  must  be  pursued  or  the 
remedy  under  the  act  of  1772  will  have  to  be  taken.  Under  that  law 
there  can  be  a  month's  notice  to  terminate  the  renting  from  month  to 
month,  with  a  notice  that  possession  will  be  required  three  months  after 
the  notice  or  three  months  after  the  termination  of  the  monthly  tenancy, 


FORMS.  265 

or  there  can  be  a  month's  notice  to  terminate  the  lease,  and  after  it  ter- 
minates three  months'  notice  can  be  given  for  possession. 

To  A.  B. :  Sir — E.  F.,  having  leased  to  you  the  premises 
[here  describe  the  premises],  for  the  term  of  five  years,  and 
the  said  E.  F.  having,  by  deed  dated  the  day  of  , 

A.  D.  ,  granted,  assigned  and  conveyed  the  said  prem- 

ises to  me  with  the  lease,  you  are  hereby  notified  and  re- 
quired to  quit  and  deliver  up  to  me  possession  of  said  prem- 
ises, which  you  now  hold  as  tenant  under  me,  at  the  expira- 
tion of  the  said  lease,  viz. :  the  day  of  ,  A.  D.  , 
as  I  desire  to  have  such  possession. 

C.  D. 

To  A.  B. :  Sir — E.  F.  died  on  the  day  of  ,  A.  D. 

,  having  by  his  will  devised  to  me  absolutely  and  in  fee 
simple  the  premises  now  occupied  by  you  [here  describe  the 
premises],  and  at  the  time  of  the  death  of  said  testator 
you  held  said  premises  as  his  tenant  from  year  to  year,  which 
rental  has  continued  since  then.  Therefore,  you  are  hereby 
notified  and  required  to  give  me  possession  of  said  premises, 
which  you  hold  as  tenant  under  me  from  year  to  year,  at  the 
end  of  your  current  term,  viz.:  the  day  of  ,  A.  D. 

,  as  I  desire  to  terminate  the  lease  at  that  time  and  to 
have  possession  of  said  premises. 

C.  D. 

Complaint  for  Possession  under  Act  of  1772. 

541.  To  David  Beitler  and  Robert  R.  Smith,  two  of  the 
aldermen  in  and  for  the  city  of  Philadelphia :  The  complaint 
of  Nelson  Gavit,  by  A.  F.  Blair,  agent,  most  respectfully  sets 
forth :  That  he  is  the  owner  of  a  certain  tenement,  with  the 
appurtenances,  situate  No.  1419  Race  street,  in  the  city  of 
Philadelphia,  and  was  in  possession  thereof  on  August  i, 
1871,  when  he  demised  the  said  premises  to  a  certain  Mary 
Hall  for  the  full  term  of  one  year  from  August  I,  1871,  at  the 
rent  of  $41.67  per  month,  which  said  term  is  fully  ended; 
That  said  Nelson  Gavit,  being  desirous,  upon  the  determina- 


266  LANDLORD  AND  TENANT. 

tion  of  the  said  term,  to  have  again  and  repossess  his  said 
estate  and  premises;  for  that  purpose  he  did,  on  the  i6th  day 
of  April,  1872,  last  past,  demand  and  require  the  said  Mary 
Hall  to  remove  from  and  leave  the  same;  and  that  the  said 
Mary  Hall  hath  hitherto  refused  and  still  doth  refuse  to  com- 
ply therewith;  that  three  months  having  elapsed  since  the 
service  of  the  said  notice,  and  said  demise  ended,  he  makes 
this  complaint,  that  such  proceedings  may  be  taken  by  you 
as  are  directed  by  the  act  of  assembly  of  1772,  in  such  case 
made  and  provided. 

»          NELSON  GAVIT, 
Per  A.  F.  BLAIR,  Agent. 

Sworn  before  us,   this  6th 
day  of  August,  A.  D.  1872. 
DAVID  BEITLER,  Alderman. 
ROBERT  R.  SMITH,  Alderman. 

Precept  to  the  Sheriff. 

542.  County  of  ^. 

The   Commonwealth  of  Pennsylvania,   to  the   sheriff   of 
county,  greeting: 

WHEREAS,  complaint  and  due  proof  was  this  day  made  be- 
fore A.  B.,  Esq.,  and  C.  D.,  Esq.,  justices  of  the  peace,  in 
and  for  the  county  of  ,  that  ,  of  ,  on  the 

day  of  ,  1899,  was  quietly  and  peaceably  possessed  of 

[here  describe  the  premises  so  as  to  certainly  locate  the 
same],  in  the  city  of  Philadelphia,  and  being  so  thereof  pos- 
sessed, on  the  same  day  and  year  aforesaid,  did  demise  the 
said  premises  to  for  the  term  of  [number  of  years]  then 

next  ensuing,  at  the  annual  rent  of  dollars,  and  that  the 

said  by  virtue  of  the  said  demise  entered  into  posses- 

sion of  the  said  demised  premises,  and  held  the  same  during 
the  said  term,  and  is  still  possessed  of  the  same,  and  that 
the  said  term  for  which  th'e  said  premises  were  demised  is 
fully  ended;  and  the  said  being  desirous  upon  the  said 


FORMS.  267 

determination  of  the  said  term  to  have  again  and  repossess 
the  said  premises,  for  that  purpose  did,  on  the  day  of 

,  1899,  demand  of  and  require  the  said  to  re- 

move from  and  leave  the  same,  on  or  before  [date],  and  that 
the  said  hath  hitherto  refused  and  still  doth  refuse  to 

comply  with  the  said  demand  and  requisition  to  remove  from 
and  leave  the  said  premises :  Therefore  we  command  you,  that 
you  summon  twelve  substantial  freeholders  of  your  bailiwick, 
so  that  they  be  and  appear  before  our  said  justices  at 
in  the  city  of  Philadelphia,  on  the  day  of  ,  A.  D. 

1900,  at  P.   M.,  and  that  you  also  summon  the  said 

so  that  he  be  and  appear  before  our  said  justices  and 
the  said  freeholders,  at  the  day,  time  and  place  aforesaid,  to 
show  cause,  if  any  he  has,  why  restitution  of  the  possession 
of  the  said  demised  premises  should  not  be  forthwith  made 
to  the  said  ,  according  to  the  form  and  effect  of  the 

act  of  general  assembly  of  1772,  in  such  case  made  and  pro- 
vided. 

Witness  the  hands  and  seals  of  the  said  ,  Esq.,  and 

Esq.,  at  the  city  aforesaid,  the  day  of  , 

A.  D.  1899. 

SEAL. 

SEAL. 
Inquisition. 

543.  Inquisition  taken  at  in  the  county  of  , 

,  A.  D.  1900,  before  ,  Esq.,  and  ,  Esq.,  two 

of  our  justices  of  the  peace,  by  the  oaths  of  and  the 

solemn  affirmations  of  ,  twelve  substantial  freeholders 

of  the  said  county;  who,  upon  their  oaths  and  affirmations 
with  the  said  justices  respectively,  do  say  and  find  that  A.  B., 
on  the  day  of  ,  A.  D.  1900,  was  quietly  and  peace- 

ably possessed  of  certain  premises  [particularly  describe  the 
same] ,  and  being  so  possessed  thereof,  on  the  same  day  and 
year  last  aforesaid,  did  demise  the  said  premises  to  C.  D.  for 
the  term  of  years  then  next  ensuing,  at  the  rent  of 

dollars  per  annum,  and  that  said  C.  D.,  by  virtue  of  the 


268  LANDLORD  AND  TENANT. 

said  demise,  entered  into  possession  of  the  said  demised 
premises,  and  held  the  same  during  the  said  term,  and  is  still 
possessed  of  the  same;  and  that  the  said  term  for  which  the 
said  premises  were  demised  is  fully  ended;  and  the  said  A. 
B.,  being  desirous  upon  the  said  determination  of  the  said 
term  to  have  again  and  repossess  the  said  premises,  for  that 
purpose  did,  on  the  day  of  ,  1900,  demand  of 

and  require  the  said  C.  D.  to  remove  from  and  leave  the 
same  within  ,  and  that  the  said  C.  D.  hath  hitherto  re- 

fused and  still  doth  refuse  to  comply  with  the  said  demand 
and  requisition  to  remove  from  and  leave  the  said  premises, 
and  the  said  freeholders  do  assess  damages  against  the  said 
C.  D.  for  the  unjust  detention  of  the  said  demised  premises 
at  $  ,  beside  all  costs  of  suit. 

Whereupon  it  is  considered  and  adjudged  by  the  said  E. 
F.  and  G.  H.,  justices  aforesaid,  and  they  enter  judgment, 
that  restitution  of  the  said  demised  premises  be  made  to  the 
said  A.  B.,  and  that  he  recover  of  the  said  C.  D.  his  damages 
aforesaid,  together  with  costs  of  suit  amounting  to  $ 

In  testimony  whereof,  as  well  the  said  justices  as  the  said 
freeholders  have,  hereunto  set  their  hands  and  seals  the  day 
and  year  first  above  written  at  aforesaid. 

Justice  of  the  Peace. 
SEAL. 

Justice  of  the  Peace. 
SEAL. 

(Signatures  of  freeholders  opposite  their  seals.) 

Record. 

544.  Be  it  remembered,  That  on  the  day  of  , 

A.  D.  1900,  at  in  the  due  proof  was  made  before 

A.  B.,  Esq.,  and  C.  D.,  Esq.,  two  of  our  justices  of  the  peace, 
that  E.  F.,  of  ,  on  the  day  of  ,  A.  D.  , 


FORMS.  269 

was  quietly  and  peaceably  possessed  of  premises  [here  par- 
ticularly describe  them],  and  being  so  thereof  possessed,  on 
the  same  day  and  year  last  aforesaid,  did  demise  the  said 
premises  to  G.  H.,  of  the  said  ,  for  the  term  of  then 

next  ensuing,  at  the  rent  of  dollars  per  annum,  and  that 

the  said  G.  H.,  by  virtue  of  the  said  demise,  entered  into  pos- 
session of  the  said  demised  premises  and  held  the  same  during 
the  said  term,  and  is  still  possessed  of  the  same,  and  that  the 
said  term  for  which  the  said  premises  were  demised  is  fully 
ended;  and  the  said  E.  F.,  being  desirous  upon  the  determi- 
nation of  the  said  term  to  have  again  and  repossess  the  said 
premises,  for  that  purpose  did,  on  the  day  of  , 

A.  D.  ,  demand  of  and  require  the  said  to  remove 

from  and  leave  the  same,  on  or  before  ,  and  that  the 

said  G.  H.  hath  hitherto  refused  and  still  doth  refuse  to  com- 
ply with  the  said  demand  and  requisition  to  remove  from  and 
leave  the  said  premises.  Whereupon  the  said  E.  F.  then,  to 
wit,  on  the  said  day  of  ,  A.  D.  ,  at  the 

aforesaid,  prayed  us,  the  said  justices  of  the  peace,  that  a  due 
remedy  in  that  behalf  be  provided  for  him  according  to  the 
act  of  the  general  assembly  of  the  state  of  Pennsylvania  in 
such  case  made  and  provided;  upon  which  proof  and  com- 
plaint the  sheriff  of  the  county  of  is  commanded  that 
he  summon  twelve  substantial  freeholders  of  his  bailiwick,  so 
that  he  be  and  appear  before  us,  the  said  justices,  at  the 
[place  of  meeting]  on  the  day  of  ,  A.  D.  , 
at  o'clock,  P.  M.,  and  that  he  also  summon  the  said 

,  so  that  he  be  and  appear  before  us,  the  said  justices 
and  the  said  freeholders,  at  the  day  and  place  last  aforesaid, 
to  show  cause,  if  any  he  has,  why  restitution  of  the  possession 
of  the  said  demised  premises  should  not  be  forthwith  made 
to  the  aforesaid  .  Afterwards,  to  wit,  on  the  said 

day   of  ,   A.    D.  ,   at   the    [place],  , 

Esq.,  sheriff  of  the  county  of  ,  appears  before  us,  the 

said  justices,  and  returns  that  by  virtue  of  the  said  warrant 
to  him  directed  he  had  summoned  twelve  substantial  free- 


270  LANDLORD   AND    TENANT. 

holders,  to  wit  [give  the  names  of  the  freeholders],  and  had 
also  summoned  the  said  to  be  and  appear  on  this  day  and 
place,  as  by  the  said  warrant  he  was  summoned;  and  the  said 
freeholders,  being  called,  appear,  and  are  severally  sworn  and 
affirmed.  And  the  said  also  appears;  that  we,  the  said 

justices  and  the  aforesaid  freeholders,  proceed  to  hear  and 
examine  the  proofs  and  allegations  offered  by  the  said  parties 
[note  witnesses  examined],  and  do  find  that  the  said  , 

on  the  day  of         ,  A.  D.  ,  was  quietly  and  peaceably 

possessed  of  premises  [here  describe  the  premises].  And 
being  so  thereof  possessed,  on  the  same  day  and  year  last 
aforesaid  did  demise  the  said  premises  to  the  said  for 

the  term  of  years  then  next  ensuing,  at  the  rent  of 

per  annum,  and  that  the  said  ,  by  virtue  of  the 

said  demise,  entered  into  possession  of  the  said  demised 
premises  and  held  the  same  during  the  said  term,  and  is  still 
possessed  of  the  same,  and  that  the  said  term  for  which  the 
said  premises  were  demised  is  fully  ended;  and  that  the  said 

being  desirous  upon  the  determination  of  the  said 
term  to  have  again  and  repossess  the  said  premises,  for  that 
purpose  did,  on  the  day  of  ,  A.  D.  ,  demand 

of  and  require  the  said  to  remove  from  and  leave  the 

same  on  or  before  ,  and  the  said  hath  hitherto 

refused  and  still  doth  refuse  to  comply  with  the  said  demand 
and  requisition  to  remove  from  and  leave  the  said  premises. 
And  the  said  freeholders  assess  the  sum  of  dollars  for 

the  damages  of  the  said  ,  occasioned  by  the  unjust 

detention  of  the  said  premises.  Therefore  it  is  considered 
and  adjudged  by  us,  the  said  justices  of  the  peace,  that  the 
said  shall  and  do  recover  possession  of  the  said  prem- 

ises, and  have  of  the  said  as  well  the  said   sum   of 

dollars,  for  his  damages  aforesaid,  as  dollars, 

for  his  reasonable  costs  by  him  expended  in  and  about  this 
suit  in  this  behalf,  concerning  which  the  premises  aforesaid 
we  do  hereby  make  this  our  record. 

In  testimony  whereof  we,  the  said  justices  of  the  peace, 


FORMS.  271 

to  this  our  record  have  set  our  hands  and  seals,  at 
aforesaid,  this  day  of  ,  A.  D. 

SEAL. 

SEAL. 
Summons  to  Third  Party  Claiming  Title. 

545.  County  of  w. 

The  Commonwealth  of  Pennsylvania,  to  the  sheriff  of  the 
said  county,  greeting: 

Whereas,  complaint  and  due  proof  have  been  made  before 
E.  F.  and  G.  H.,  two  of  our  justices  of  the  peace  [or  alder- 
men] in  and  for  the  said  county  [or  the  city  of  ],  that 
A.  B.,  on  the  day  of  ,  in  the  year  of  our  Lord 
one  thousand  nine  hundred  and  ,  was  quietly  and 
peaceably  possessed  of  a  certain  [here  describe  the  premises 
as  before]  together  with  the  appurtenances,  and  being  so 
thereof  possessed  on  the  same  day  and  year  aforesaid,  at  the 
county  aforesaid,  did  demise  the  said  premises  to  one  C.  D. 
for  the  term  of  years  then  next  ensuing,  at  the  yearly 
rent  of  dollars,  lawful  money,  payable  for  the  same ; 
and  that  the  said  C.  D.  by  virtue  of  the  said  demise  entered 
into  possession  of  the  said  demised  premises  with  the  ap- 
purtenances, and  held  them  during  the  said  term,  and  is  still 
possessed  thereof,  and  that  the  said  term  for  which  the  said 
premises  were  demised  is  fully  ended  and  that  the  said  A.  B., 
being  desirous  upon  the  determination  of  the  said  lease  to 
have  again  and  repossess  his  said  estate  so  demised,  for  that 
purpose  did,  on  the  day  of  last  past,  require  the 
said  C.  D.  to  remove  from  and  leave  the  same,  and  that  the 
said  C.  D.  hath  hitherto  refused  and  still  doth  refuse  to  com- 
ply therewith.  And  whereas,  the  said  C.  D.  being  duly  sum- 
moned doth  appear  before  our  said  justices  [or  aldermen] 
and  doth  allege  that  the  title  to  the  said  [messuage  or  other- 
wise, as  the  case  may  be]  is  disputed  and  claimed  by  O.  P.,  of 
,  in  the  said  county,  in  virtue  of  a  right  or  title  ac- 
crued or  happening  since  the  commencement  of  the  lease  so 


272  LANDLORD   AND   TENANT. 

as  aforesaid  made  to  him  the  said  C.  D.  by  virtue  of  a  deed 
made  by  the  said  A.  B.  to  the  said  O.  P.,  you  are  therefore 
commanded  to  summon  the  said  O.  P.  to  appear  before  our 
justices  [or  aldermen]  at  the  ,  in  the  county  aforesaid, 

on  the  day  of  instant  at  o'clock  in  the 

noon,  to  declare  on  oath  or  affirmation  to  be  by  our 
said  justices  [or  aldermen]  administered  that  he  verily  be- 
lieves that  he  is  entitled  to  the  premises  in  dispute;  and  with 
one  or  more  sufficient  sureties  to  become  bound  by  recog- 
nizance in  the  sum  of  to  the  said  A.  B.,  his  heirs  or 
assigns,  to  prosecute  his  claim  at  the  next  court  of  common 
pleas  to  be  held  for  the  said  county  (if  to  him  it  shall  be  ex- 
pedient). Make  return  hereof  according  to  law. 

Witness  the  said  E.  F.  and  G.  H.,  at  ,  in  the  county 

aforesaid,  the  day  of  ,  in  the  year  of  our  Lord 

One  thousand  nine  hundred  and 

E.  F. 
G.  H. 

Complaint  for  Possession  under  Act  of  1863. 

546.  County  of  ss. 

On  this  day  of  A.  D.   189     ,  personally  ap- 

peared before  me,  the  subscriber,  one  of  the  in  said 

county  who,  being  duly  according  to  law,  doth 

depose  and  say:  That  on  the  day  of  189     ,  he 

was  quietly  in  possession  of  a  certain  messuage  or  tenement, 
with  the  appurtenances,  situate  ;  that  on  the  said  last- 

mentioned  day  he  demised  said  premises  to  a  certain 
for  the  term  of  at  the  rent  of  dollars 

which  said  term  is  fully  ended ;  that  the  said 
being  desirous  upon  the  expiration  of  the  said  term  to  have 
again  and  repossess  the  said  premises,  for  that  purpose  did, 
three  months  previous  to  such  expiration,  demand  and  re- 
quire of  the  said  to  remove  from  and  leave  the  same, 
and  that  the  said  having  hitherto  refused,  and  still  re- 
fusing to  comply  therewith,  he  makes  this  complaint  that 


FORMS.  273 

such  proceedings  may  be  taken  as  are  directed  by  the  act  of 
assembly  in  such  case  made  and  provided. 

and  subscribed  before  me,  189     . 

SEAL. 
Summons. 

547.  County  of  w. 

The  Commonwealth  of  Pennsylvania,  to  any  constable  of 
the  said  county,  greeting : 

WHEREAS,  it  appears  to  me,  the  subscriber,  one  of  the 
in  said  county,  by  complaint  on  oath  that  was  on 

the  day  of  189     ,  quietly  in  the  possession  of  a 

certain  messuage  or  tenement,  with  the  appurtenances,  situ- 
ate that  on  the  said  last-mentioned  day  demised 
said  premises  to  a  certain  for  the  full  term  of  at 
the  rent  of  which  said  term  is  fully  ended;  that 
the  said  being  desirous  upon  the  expiration  of  the  said 
term  to  have  again  and  repossess  the  said  premises,  for  that 
purpose  did,  three  months  previous  to  such  expiration,  de- 
mand and  require  of  the  said  to  remove  from  and  leave 
the  same,  and  that  the  said  hath  hitherto  refused  and 
still  doth  refuse  to  comply  therewith. 

You  are  therefore  hereby  commanded  to  summon  the  said 
to  be  and  appear  on  the  day  of  189     ,  be- 

tween the  hours  of  and  o'clock,  M.,  at  the 

office  of  the  subscriber,  to  show  cause,  if  any  has, 

why  restitution  of  the  possession  of  the  said  premises  should 
not  be  forthwith  made  to  the  aforesaid  according  to 

the  form  and  effect  of  the  act  of  assembly  in  such  case  made 
and  provided.  And  this  you  shall  in  nowise  omit. 

In  witness  whereof,  the  said  has  hereunto  set  his 

hand  and  seal  the  day  of  ,  189     . 

SEAL. 
Record. 

548.  BE  IT  REMEMBERED,  that  on  the         day  of         A.  D. 
,  at  the  city  of  Philadelphia,  due  proof  was  made  be- 
fore A.  D.,  magistrate  of  court  No.     ,  in  and  for  the  said  city, 

18 


274  LANDLORD  AND  TENANT. 

that  C.  D.  on  the  day  of  ,  A.  D.  ,  was 

quietly  and  peaceably  possessed  of  [here  briefly  but  certainly 
describe  the  demised  premises]  and  being  so  thereof  pos- 
sessed on  the  same  day  and  year  last  aforesaid,  did  demise  the 
said  premises  to  E.  F.  for  the  term  of  years  then  next 

ensuing,  at  the  yearly  rent  of  dollars ;  and  that  the  said 

E.  F.  by  virtue  of  the  said  demise,  entered  into  possession  of 
the  said  demised  premises,  and  held  the  same  during  said 
term,  and  is  still  possessed  of  the  same;  and  that  the  said 
term  for  which  the  said  premises  were  demised  is  fully  ended ; 
and  that  the  said  C.  D.  being  desirous,  upon  the  said  determi- 
nation of  the  said  term,  to  have  again  and  repossess  the  said 
premises,  for  that  purpose  did  on  the  day  of  A.  D. 

,  demand  of  and  require  the  said  to  remove 

from  and  leave  the  same,  and  that  the  said  has  hitherto 

refused,  and  still  doth  refuse  to  comply  with  the  said  demand 
and  requisition  to  remove  from  and  leave  the  said  premises. 
Whereupon  the  said  then,  to  wit,  on  the  said  day 

of  ,  A.  D.  ,  prayed  the  said  magistrates  that  a  due 

remedy  in  that  behalf  be  provided  for  him,  according  to  the 
form  of  the  act  of  the  general  assembly  of  the  state  of  Penn- 
sylvania in  such  case  made  and  provided,  upon  which  proof 
and  complaint  one  of  the  constables  of  the  said  city  was  com- 
manded to  summon  the  said  to  be  and  appear  on  the 

day  of  ,   A.   D.  ,   between   the   hours   of 

and  o'clock  in  the  forenoon,  before  our  said 

magistrate,  at  his  court  in  the  said  city,  to  show  cause,  if  any 
he  has,  why  restitution  of  the  possession  of  the  said  demised 
premises  should  not  be  forthwith  made  to  the  aforesaid 
on  the  day  of  ,  A.  D.  ,  and  G.  H.,  constable, 

returned  on  oath  served  on  defendant  [here  insert  the  return 
of  the  manner  of  service].  Afterwards,  to  wit,  on  the  said 

day  of  ,  A.  D.  ,  at  o'clock  [A.  M.  or 

p.  M.],  at  the  said  court,  at  in  the  said  city  [here  state  the 
appearances  and  briefly  state  the  evidence  and  note  witnesses 
examined].  After  hearing  the  proofs  and  allegations  of- 


FORMS.  275 

fered  by  the  said  our  said  magistrate  finds  that  the  said 

on  the  day  of  A.  D.  was  quietly  and 

peaceably  possessed  of  [here  describe  the  premises  so  as  to 
locate  them]  and  being  so  thereof  possessed  on  the  same  day 
and  year  last  aforesaid  did  demise  the  said  premises  to  the 
said  for  the  term  of  years  then  next  ensuing  at  the 

yearly  rent  of  dollars;  and  that  the  said  by 

virtue  of  the  said  demise,  entered  into  possession  of  the  said 
demised  premises  and  held  the  same  during  the  said  term,  and 
is  still  possessed  of  the  same,  and  that  the  said  term  for  which 
the  said  premises  were  demised  is  fully  ended  and  that  the 
said  being  desirous,  upon  the  said  determination  of  the 

said  term,  to  have  again  and  repossess  the  said  premises  for 
that  purpose  did  on  the  day  of  A.  D.  de- 

mand and  require  the  said  to  remove  from  and  leave 

the  same,  and  that  the  said  has  hitherto  refused  and 

still  does  refuse  to  comply  with  the  said  demand  and  requisi- 
tion to  remove  from  and  leave  the  said  premises.  And  our 
said  magistrate  doth  assess  the  sum  of  dollars  for  the 

damage  of  the  said  occasioned  by  the  unjust  detention 

of  the  said  premises.  Our  said  magistrate  did  thereupon 
enter  judgment  against  the  said  tenant  that  he  forthwith  give 
up  possession  of  the  said  premises  to  the  said  lessor,  and  that 
the  said  lessor  shall  and  do  recover,  and  have  of  the  said  les- 
see or  tenant  as  well  the  said  sum  of  dollars  for  his 
damages  aforesaid,  as  dollars  for  his  reasonable  costs 
by  him  expended  in  and  about  this  suit  in  this  behalf,  con- 
cerning which  the  premises  aforesaid  our  said  magistrate  doth 
make  this  his  record. 

In  testimony  whereof,  our  said  magistrate  to  this,  his 
record  hath  hereunto  set  his  hand  and  the  official  seal  of  the 
said  court,  at  the  city  of  Philadelphia,  this  day  of 

A.  D. 

A.  B.,  Magistrate  of  Court  No.     . 

OFFICIAL  SEAL. 


276  LANDLORD    AND   TENANT. 

Writ  of  Restitution. 

549.  City  of  Philadelphia,  ss. 

The  Commonwealth  of  Pennsylvania,  to  any  constable  of 
the  said  city,  greeting : 

WHEREAS,  due  proof  hath  been  made  before  me,  the  sub- 
scriber, one  of  the  magistrates  in  and  for  the  city  of  Phila- 
delphia, that  A.  B.  did  on  the  day  of  ,  A.  D. 
,  demise  to  C.  D.  [here  describe  the  premises]  in  said 
city  for  the  full  term  of  at  a  yearly  rent  of  , 
which  said  term  is  fully  ended ;  that  the  said  A.  B.,  being  de- 
sirous upon  the  expiration  of  the  said  term  to  have  again  and 
repossess  the  said  premises,  for  that  purpose  did,  three  months 
previous  to  such  expiration,  demand  and  require  of  the  said 
C.  D.  to  remove  from  and  leave  the  same ;  and  that  the  said 
C.  D.  hath  hitherto  refused  and  still  doth  refuse  to  comply 
therewith;  all  which  premises  being  duly  found  by  me,  the 
said  magistrate,  according  to  the  form  of  the  act  of  as- 
sembly in  such  case  made  and  provided.  You  are,  therefore, 
hereby  commanded  forthwith  to  deliver  to  the  said  A.  B.,  full 
possession  of  the  demised  premises  aforesaid.  And  you  are 
also  commanded  that  of  the  goods  and  chattels  of  the  said 
C.  D.  in  your  bailiwick,  you  cause  to  be  levied  as  well  the 
sum  of  dollars,  which  the  said  A.  B.  has  had  awarded 
for  damages  sustained  by  the  unjust  detention  of  the  prem- 
ises, as  dollars  for  his  costs  and  charges  by  him  in  and 
about  his  suit  in  that  behalf  expended,  whereof  the  said  C.  D. 
is  convict.  And  hereof  fail  not. 

Witness  our  said  magistrate,  at  the  city  of  Philadelphia, 
aforesaid,  the  day  of  ,  A.  D. 

E.  F.,  Magistrate. 
SEAL. 

Notice  in  Case  of  Lost  Lease. 

Philadelphia,  ,  18     . 

550.  Having  lost  the  evidence  of  the  beginning  and 
conclusion  of  your  term  in  the  following  described  premises 


FORMS.  277 

[demised  to  you  by  ],  to  wit:  All  .     And  being  de- 

sirous to  recover  possession  of  the  said  described  premises, 
you  are  hereby  notified  that  unable  to  make  proof  of 

the  beginning  and  conclusion  of  your  said  term,  and  therefore 
require  you,  within  thirty  days  from  the  time  of  the  service 
of  this  notice  to  furnish  in  writing,  with  the  date  at 

which  your  said  term  of  tenancy  commenced,  according  to 
the  terms  and  provisions  of  the  act  of  assembly  in  such  case 
made  and  provided. 

Yours,  etc., 
To         :-. 

Second  Notice. 

551.  City  of  Philadelphia,  18     . 
On  the            day  of             18     ,  I  gave  you  notice  that 

the  evidence  of  the  beginning  and  conclusion  of  the 

term  for  which  the  premises  now  occupied  by  you,  situate 
Philadelphia,  was  lost,  etc.,  and  that  you  should,  within 
thirty  days  thereafter,  furnish  me  in  writing,  with  the  date  at 
which  your  term  of  tenancy  commenced;  you  having  failed 
to  comply  with  the  requirements  of  said  notice  I  hereby  re- 
quire you  to  remove  from  said  premises  and  deliver  up  pos- 
session of  the  same  to  me,  within  three  months  from  the 
time  you  shall  receive  this  notice. 

Yours,  etc., 
To  Mr. 

Notice  when  Tenant  is  Unable  to  Answer  First  Notice. 

552.  City  of  Philadelphia,  18     . 

On  the  day  of  ,  18  ,  I  gave  you  notice  re- 

quiring you  to  furnish  me  in  writing,  within  thirty  days  from 
the  time  of  the  service  of  the  said  notice,  with  the  date  at  which 
your  term  of  tenancy  commenced,  of  the  premises  now  oc- 
cupied by  you,  situate  Philadelphia,  and  you  having 
made  affidavit  within  the  said  thirty  days,  that  you  are  unable 
to  comply  with  the  requirements  therein ;  you  are  hereby  re- 


278  LANDLORD  AND  TENANT. 

quired  to  remove  from  and  surrender  to  me  possession  of  said 
premises,  within  six  months  from  the  time  you  shall  receive 
this  notice. 

Yours,  etc., 
To  Mr. 


TABLE  OF  CASES. 


Academy  v.  Birt 
Adams  v.  Adams 
Adams  v.  McKesson's  Ex. 
Agnew  v.  Whitney 
Anderson  v.  Brinser, 
Ashhurst  v.  Phonograph  Co. 
Assigned  Est.  Snyder 
Association  v.  Frisdjen, 
Association  v.   Hetzell 
Association  v.  Jones 
Alter  v.  Penn 
Aye  v.  Phila.   Co. 

Baer  v.  Kuhl 
Bank  v.  Ege 
Bank  v.   Hanson 
Bank    v.    Legrand 
Bank  v.  Smith 
Bank  v.  Yard 
Bank  v.  Wise 
Bantleon  v.  Smith 
Barclay  v.  Wainwright 
Barns  v.  Wilson 
Barnes  v.  Carney 
Barrington  v.  Justice 
Basset  v.  Hawke 
Bears  v.  Ambler 
Becker  v.  Werner 
Bellas  v.  Hays 
Berridge  v.  Glassey 
Beymer  v.  Bonsall 
Bittinger  v.  Baker 
Blanche  v.  Bradford 
Blight  v.  Wright 
Block  v.  Bowling 
Boggs  v.  Black 
Bogert  v.  Batterton 
Boice  v.  Zimmerman 
Bond  v.  Atkin 
Bonsall  v.  Comly 
Borie  v.  Crissman 
Borough  v.  Walters 
Boteler  v.  Espen 


PAGE 

PACK 

II 

Bowman  v.  Bradley 

12 

24 

Boyd  v.  McCombs 

31 

s  Ex.        128 

Boyer  v.  Fulmer 

100 

40 

Boyer  v.  Smith 

48 

209 

Brandt  v.  McKeever 

184 

aph  Co.    218 

Bratton  v.  Seymour 

16 

r                 76 

Breneman's  Est. 

61 

;n,               14 

Breuckmann  v.  Twibill 

139 

ill                  8 

Brisbin  v.  Wilson 

"5 

103 

Brolasky  v.  Ferguson 

14 

138 

Brown  v.  Beecher             194, 

225 

50,  197,  227 

Brown  v.  Brightly              158, 

218 

Brown  v.  Dysinger             48, 

in 

235 

Brown  v.  Jacquette               12, 

103 

63 

Brown  v.  Stackhouse 

"5 

63 

Buchannan  v.  Baxter 

153 

58 

Burns  v.  Cooper 

129 

18 

Burr  v.   Cattnach 

136 

57 

Bush  v.  Oil  Co. 

14 

32 

105 

Caldelegh  v.  Hollingsworth 

"5 

ht              130 

Calgan  v.  Coal  Co. 

195 

45 

Camp  v.  Casey 

205 

58 

Carskadden  v.  McGhee 

20 

46 

Carson  v  .  Godley 

170 

19 

Carver  v.  Gough 

54 

171 

Chadwick  v.  Coleman 

186 

78 

Clark  v.  Everly            83,  127, 

128 

16 

Clark  v.  Harvey                 127, 

128 

ii 

Clark  v.  Patterson 

154 

19 

Clark  v.  Yeat 

154 

128 

Clayton  v.  Blakey 

13 

1  20 

Cleary  v.  Allen 

47 

24 

Coal  Co.  v.  Sanderson 

192 

216 

Coal  Co.  v.  Wright 

10 

149,  159 

Coe  v.  Vogdes 

57 

lip,    121 

Cogley  v.  Brown 

43 

i                    9 

Coke 

21 

19 

Cole  v.   Bolard 

47 

121 

Coleman  v.  Chadwick 

186 

34 

Com.  v.  Brown 

144 

158 

Com.  v.  Knarr 

144 

I3i 

Com.  v.  McNeile          30,  143, 

230 

279 

280 


TABLE    OP    CASKS. 


Cook  v.  Neilson 
Com.  v.  Nichols 
Com.  v.  Rees 
Collins  v.  Whilldin 
Com.  v.  Wisner 
Cooper  v.  Smith 
Coppel's  Est. 
Cornell  v.  Green 
Craig  v.   Dale 
Cunningham  v.  Eentrekin 
Currier  v.  Grebe 
Curtin  v.   Somerset 
Curtis  v,  Hubbard 

Davis  v.  Davis      41,  117, 
Davis  v.   Moss 
De  Coursey  v.  Trust  Co. 
Delph  v.  Hoffman 
Demi  v.  Bossier 
De  Morat  v.  Falkenhagen 
Detwiler's  Ap. 
Detwiler  v.   Cox 
Dickson  v .  Wolf 
Diehl  v.  Holben 
Dieffenderfer  v.  Fisher 
Dikeman  v.  Parrish 
Diller  v.   Roberts 
Doe  v.  Bell 
Donaldson   v.    Likens 
Dorian  v.  Chase 
Double  v.  Heat  Co. 
Duff  v.  Fitzwater        147, 
Duffee  v.   Mansfield 
Duffield  v.  Rosenzweig 
Duffy  v.   Ogden 
Dumn  v.  Rothermel 
Dumpor's  Case 
Duncan  v.  Hartman      17, 
Dunham  v.  Loyerock 
Dunmire  v.  Price 
Dyer  v.  Wightman 


158 
109 
142 
46 
143 
47 
74 
in 
127 
205 
160 
170 
107 

148,  165 
54 

148,  153 
109 
127 
139 
25,  61 
103 
58 

122 

I2T 
48 
13 
13 
",    159 

135 
32 

148,  152 
15,  59 
189 
159 


19,  225 
189 
165 
177 


Effinger  v.  Lewis  28,  191 
Ehret  v.  R.  R.  Co.  179 
Elliott's  Ap.  74 
Esterly  Machine  Co.  v.  Spen- 
cer 115 
Evans  v.  Hanwick  98 
Ewing  v.  Cottman  137 

Fahnestock  v.  Faustenauer  149 

Farley  v.  Stokes  7 

Fennel  v.  Guffey  197 
Ferguson  v.  Rafferty 

Finnegan  v.  Stineman       187,  188 

Fisher  v.  Allen  96 

Fisher  v.  Guffey  196 

Fire  Assn.  v.  Williamson  220 


Fitzmaurice  v.  Fabian  174 

Flanigan  v.  Rossiter  58 

Flanigan  v.  City  233 

Folsom  v.   Cook  162 

Forsythe  v.  Price  128 

Frank  v.  Maguire  31,  72 

Fretag  v.  Anderson  90 

Fry  v.  Jones  103 

Furbush  v.  Chappell  104,  108 

Galbraith  v.  Black  154 

Galey  v.  Hellerman  191 

Galloway  v.  Ogle  47 

Garrett  v.  Dewart  63 

Gas  Co.  v.  Johnson  197 

Gas  Co.  v.  Patterson  227 

Gas  Co.  v.  Phila.  Co.  8,  49 

Gaskins  v.  Gaskins  31 

Gault  v.  Neal  158 

Gebler  v.  Culin  25 

Geisenberger  v.  Cerf  91 

Gerson,  In  re 

Getz  v.  R.  R.  Co. 

Gill  v.  Weston 

Gillion  v.  Finley 

Gillian  v.  Tobias 

Gilpin  v.  Howell 

Givens  v.  Miller 

Glenn  v.  Thompson       83, 

Godley  v.  Hagerty 

Goehring's  Ap. 

Goldbeck  v.  Bank 

Goodwin  v.  Sharkey 

Goss  v.  Brick  Co. 

Grace  v.  Shively          74, 

Graham  v.  Moore 

Grant's  Ap. 

Graver  v.  Fehr 

Griffin  v.  Fellows 

Griffin  v.  Pottery  Co. 

Griffiths  v.  Marsh 

Grider  v.  Mclntyre 

Groves  v.  Hodges 

Grubb  v.  Grubb 

Guffey  v.  Clever 

Hall  v.  Parker 
Hall  y.  Stewart 
Hamilton  v.  Ins.  Co. 
Hand  v.  Suravitz 
Harding  v.  Seeley 
Harlan  v.  Coal  Co. 
Harris  v.  Knowles 
Hart  v.  Withers 
Hartman  v.  Quay 
Harvey  v.  Guntzberg 
Haynes  v.  Synnott 
Hazlett  v.  Powell 


79 
217 
104 

18 
165 

147,  160 
170 

25 

22 
33,  149 

73 
123,  234 

47 

97,  234 
148 
186 

32 
160 

91 

17 
184 
201 


205 

21 

228 

218 

186 

20 

19 

203 

202 

58 

33 


TABLE   OF    CASES. 


281 


i           PAGE                                                                                                       PACB 

Hazelett  v.  Mangel 

116 

Lafferty  v.  R.  R.  Co. 

179 

Heil  v.  Strong 

185 

Lampleigh  v.  Brathwait 

45 

Hemphill  v.  Flynn 

29 

Lane  v.  Hotel  Co. 

94 

Hemphill  v.  Tevis 

63 

Lane  v.  Steinmetz 

104 

Henry  v.  Wilson 

26 

Lane  v.  Nelson                10,  n, 

139 

Heritage  v.  Wilfong 

164 

Lanigan  v.  Kille 

203 

Hessel  v.  Fritz 

45 

Latimer  v.  Groetzinger 

209 

Hessel  v.  Johnson 

140 

Leatherman  v.  Oliver         191, 

192 

Hey  v.   Bruner 

54 

Leidich's  Est. 

76 

Hey  v.  McGrath 

15,  28 

Leggoe  v.  Mayer 

9 

Hill  v.  Sewald 

54 

Lemar  v.   Miles                    40, 

230 

Hilton's  Ap. 

78 

Le  Neve  v.  Le  Neve 

6 

Hockley  v.  McGlinn 

44 

Lewis  v.  Jones 

46 

Hoeveler  v.  Fleming 

135 

Lipper  v.  Bouve 

218 

Hohly  v.  Society 

148 

Long  v.  Seavers 

34 

Holland  v.  Townsend 

117 

Logan  v.  Herron 

149 

Hollis  v.  Brown 

200           Lloyd  v.  Underkofler 

21 

Hollis  v.  Burns           29, 

147,  200           Lulay  v.  Barnes 

9 

Holt  v.  Martin 

18 

Lutz  v.  Winkle  r 

173 

Hoskins  v.  Houston 

95 

Lynch  v.  Gas  Co. 

194 

Hoy  v.  Holt 

38 

Huber  v.  Baum 

2OI 

Magaw  v.  Lambert              33, 

135 

Hunter  v.  Jones 

127 

Mahon  v.  Kunkle 

98 

Hughs  v.  Lillibridge 

213 

Manuel  v.  Reath 

208 

Hutchinson  v.  Potter 

160 

Market  Co.  v.  Lutz 

63 

Marlatt  v.  Marlatt 

14 

lams  v.  Gas  Co. 

197 

Marys  v.  Anderson                23 

,  30 

Iron  Works  Ap. 

76 

Mather  v.  Wood 

114 

Irwin  v.  Covode 

185 

Maxwell  v.  Perkins 

87 

Mays  v.  Dwight 

186 

Jennings  v.  Beal 

188 

McCafferty  v.  Griswold 

6 

Johnson  v.  Cowan 

186 

McCauley  v.  Keller 

9 

Johnson  v.  Smith 

3i 

McClaren  v.  Oil  Co. 

231 

Jones  v.  Goldbeck 

104 

McClintock  v.  Loveless 

215 

Jones  v.  Gundrim 

207 

McClinton  v.  Railroad  Co. 

177 

Jones  v.  Whitehead 

47 

McCormic  v.  Connell 

4i 

Justice  v.  Phila. 

178 

McClurg  v.  Price 

216 

McCoy  v.  McMurtrie 

97 

Kaier  v.   Leahy 

48 

McDowell  v.  Adams 

129 

Karns  v.  McKinney     103 

,  104,  105 

McDowell  v.  Simpson 

17 

Karns  v.  Tanner 

193 

McGeary  v.  Mellor 

118 

Kelly  v.  Marshall 

193 

McGlowry  v.  Groghan's  Adm 

7 

Kendig  v.  Kendig 

96 

McKean  v  .King 

83 

Kennedy  v.  Crawford 

193 

McKim's   Est. 

94 

Kenney's  Ap.,  22  W.  N.  C.  89     53 

McMullin  v.  Orr 

151 

Kessler  v.  McConachy 

136 

McNamee  v.  Cresson 

58 

Kile  v.  Giebner 

54 

Meany  v.  Abbott 

170 

King  v.  Bosserman 

227,  228 

Medary  v.  Gathers 

58 

Kleber  v.  Ward 

118 

Megargee  v.  Longaker 

218 

Kline  v.  Jacobs 

14,  38 

Meitzler's  Ap. 

122 

Knerr  v.  Bradley 

208 

Mickle  v.  Miles 

30 

Koch's  Ap. 

185 

Miles  v.  Cook 

19 

Koenig  v.  Bauer 

159 

Milling  v.  Becker        29,  135, 

139 

Korn  v.  Hohl 

56 

Mintzer  v.  Hogg 

175 

Kroeger  v.   Pitcairn 

17 

Moderwell  v.  Mullison 

2O 

Kunkle  v.  Rifle  Club 

ii 

Mohan  v.  Butler                  86, 

164 

Moore  v.  Weber 

45 

Ladley  v.  Creighton 

77,  78 

Morrison  v.  Beirer 

22 

282 


TABLE    OF    CASES. 


Mowne  v.  Armstrong  187 

Mund  v.  Vanfleet  91 

Murphy  v.  Losch  139 

Murphy  v.  Marshall  212 

Murray  v.  Vaughn  106 

Myers  v.  Coal  Co.  191 

Myers  v.  Hulseman  58 
Myers  v.  Esery                   104,  120 

Neill  v.  Shamberg  188 

Newell's  Est.  208 

Newell's  Ap.  40 

Newell  v.  Gibbs  48 

Newman  v.  Rutter  47 

Norris  v.  Gould  23 

Oakford  v.  Nixon  201 

Obermyer  v.  Nichols  31 

Oil  Co.  v.  Fretts  192 

Oil  Co.  v.  Railroad  22 

Oil  Co.  v.  Mining  Co.  57 

Oliver  v.  Brophy  43 

Page  v.  Middleton  103,  104 

Palethrop  v.  Bergner  230 

Palethorp  v.  Schmidt  86 

Patterson  v.  Silliman  187 

Paul  v.  Johnson  16 

Pennant's  Case  42 
Petroleum  Co.  v.  Oil  Co.        231 

Pfund  v.  Herlinger  136 

Phillips  v.   Meily  8 

Phillips  v.  Monges  13 
Pier  v.  Carr                        135,  136 

Platt  v.  Johnson  211 

Pleasanton's  Ap.  57 

Pollard  v.  Shaaffer  38 

Powell  v.  Campbell  91 

Pratt  v.  Levan  75 

Prescott  v.  Otterstatter  33 

Prutzman  v.  Ferree  48 

Quinn  v.  McCarty  164 

Quigley  v.  De  Haas  17 

Railroad  Co.  v.  Railroad  Co.     177 

Railroad  Co.  v.  Smith  31 

Rap  v.  Klair  179 
Ray  v.  Gas  Co.                    42,  192 

Reaney  v.  Fannessy  139 

Reed  v.  Kenney  130 

Reed  v.  Ward  33 

Rees  v.  Emerick  106 

Reeves  v.  McCormick  200 
Reid  v.  Christy             83,  151,  161 

Reiff  v.  Reiff  126 

Reigart  v.  White  56 

Reinman  v.  Blair  40 


Rich  v.  Keyser  158 
Richards  v.  McGrath    106, 

in,  116,  118 

Riddlesburg  C.  &  I.  Co.  Ap.      98 

Rinehart  v.  Olwine  34 

Robb  v.  Carneige  192 

Roberts  v.  Ristine  41 

Rohbock  McGargo  218 

Rohrer  v.  Cunningham  118 
Rosenberger  v.  Hallowell  121,  214 

Sachs  v.  Schimmel  202 

Sanders  v.  Sharp  19 

Sausser  v.  Steinmetz  6 

Scott  v.  Fuller  148 

Seabrook  v.  Moyer  134 

Seeger  v.  Pettit  53 

Semayne's  Case  106 

Sennett  v.  Bucher  8 

Seyfert  v.  Bean  18 

Shaffer  v.  Sutton  147 

Shaw  v.  Bowman  128 

Shaw  v.  Phila.  178 

Sheets  v.  Allen  224 

Sheaffer  v.  Sheaffer  41 

Simpson  v.  Hartopp  105 

Singer  v.  Solomon  61 

Sleeper  v.  Parrish  ,       123 

Smith  v.  Harvey  9 

Snow  v.  Dill  121 

Snyder's  Assd.  Est.  76 

Snyder  v.  Boring  115,  116 
Snyder  v.  Carfrey         85,  158,  163 

Snyder  v.  May  19 

Spencer  v.  Darlington  37,  104 

Spencer  z>.  Clinefelter  105 

Springer  v.  Gas  Co.  191,  192 

Steamboat  Co.  v.  Hass  154 
Steamboat  Co.  v.  McCutchen    22 

Steel  v.  Frick  103 

Steiner  v.  Marks  193 

Stewart  v.  Lawspn  44 

Stewart  v.  Martin  151 

Stewart  v.  Roderick  48 

Stockton's  Ap.  62 

Stoever  i>.  Miller  83 

Stone  v.  Marshall  197 

Stone  v.  Oil  Co.  197 

Stoiighton's  Ap.  185 

Stover  v.  Cadwallader  14 

Strange  v.  Austin  63 

Sturtevant's  Ap.  77 

Swartz's  Ap.  44 


Tate  v.   Reynolds 
Taylor  v.  Kennelly 
Teller  v.  Boyle 
Thackray's  Ap. 


26 

56 

232 

35 


TABLE   OF   CASES. 


283 


Tham  v.  Hamberg  159 

Thomas  v.  Loose  8,  10 

Thomas  v.  Railroad  12,  22 

Thropp's  Ap.  55 

Tiley  v.  Meyers  226 

Timlin  v.  Brown  190 

Tool  v.  Ins.  Co.  133 
Townsend  v.  Underbill,  6  Pa. 

C.  C.  R.  544  53 

Trout  v.  McDonald  186,  193 

Twibill  v.  Brown  200 

Vaughn  v.  Blanchard  135,  136 

Veditz  v.  Levy  153 

I 

Walbridge  v.  Pruden  102 

Walden  v.  Finch  170 

Walker  v .  Githens  219 

Walker's  Est.  46 

Waller  v.  Coal  Co.  195 

Wain  v.  Conner  47 

Wander  v.  McLean  175 

Ward  v.  Wandell  91 

Ward's  Est.  137 

Warren  v .  Forney  103 


Watts  v.  Fox  85,  151 

Waugh's  Exrs.  v.  Waugh  129 

White  v.  Arthur  152 

Wilgus  v.  Whitehead  9 

Williams  v.  Short  196 

Wilson  v.  Barns  177 

Wistar  v.  Ollis  154 
Woglam  v.  Cowperthwaite        108 

Weinmann's  Est.  75 
Weightman  v.  Harley        139,  140 

Wheeler  v.  Conrad  15 

Whelen  v.  Boyd  57 

Whitaker  v.  Richards  19 

White  v.  Arthur  152 

Whiting  v.  Opera  Co.  15 

Whitton  v.  Milligan  117 

Wiatt  v.  Ewing  116 

Wickey  v.  Fyster  96 

Wiley's  Ap.  74 

Wilson  v.  McElroy  122 

Wyke  v.  Wilson  116 

Yeager  v.  Weaver  6 
Young  v.  Oil  Co.               195,  196 


INDEX. 


References  are  to  the  sections. 

ABANDONMENT 
by  tenant,  295. 
forfeiture  for  not  developing  mine  favored,  421. 

ACCEPTANCE 

surrender  must  be  accepted,  325. 
evidence  of,  326. 

ACTION 

before  justice  for  rent,  224. 
in  court  for  rent,  226. 
of  ejectment,  129. 
of  replevin,  269. 
for  waste,  391. 

ACTS  OF  ASSEMBLY 

1772,  March  21,  i  Sm.  389. 

§    i,  requiring  a  writing  for  a  lease  over  three  years,  20. 

§    i,  requiring  assignment  of  lease  to  be  by  writing,  178. 
1772,  March  21,  i  Sm.  370. 

§  i,  providing  for  manner  of  proceeding  with  goods  dis- 
trained for  rent,  244. 

§  2,  providing  penalty  on  any  pound  breach  or  rescous  of 
goods,  etc.,  distrained,  262. 

§  3,  providing  penalty  for  distraining  when  no  rent  in 
arrear,  258. 

§  4,  providing  that  landlord  shall  be  paid  one  year's  rent 
from  sheriff  sale  of  personal  property,  234. 

§§  5  and  6,  providing  that  goods  clandestinely  removed 
may  be  distrained  on  for  thirty  days  unless  sold  be- 
fore seizure,  291. 

§   7,  providing  for  a  distraint  on  cattle,  corn,  grass,  etc., 

255- 
§  12.  for  the  recovery  of  possession  at  the  end  of  term,  336. 

285 


286  INDEX. 

References  are  to  the  sections. 

ACTS  OF  ASSEMBLY— (Continued.) 
1772,  March  21,  i  Sm.  370. 

§  12,  providing  for  proceeding  for  possession  at  end  of 

term  when  title  disputed,  336. 
§  14,  providing  for  a  distraint  after  termination  of  lease, 

245. 
1772,  March  22,  6  Sm.  182. 

§   6,  providing  for  jurisdiction  of  justice  of  the  peace,  229. 
1822,  March  29,  7  Sm.  520. 

§    i,  providing  for  a  writ  of  estrepement  to  stay  waste, 

388. 
1825,  March  25,  8  Sm.  411. 

§    i,  providing  for  a  distraint  upon  goods  fraudulently 

removed  in  Philadelphia,  295. 

§    i,  providing  for  possession  when  tenant  moves,  219. 
1830,  April  3,  P.  L.  187. 

§    i,  for  possession  for  non-payment  of  rent,  202. 

1833,  April  8,  P.  L.  315. 

§    i,  original  intestate  law,  177. 

1834,  Feb.  24,  P.  L.  77. 

§  21,  preference  for  year's  rent  in  case  of  death  of  tenant, 

230. 
1834,  Feb.  24,  P.  L.  77. 

§  30,  providing  that  executors  of  tenant  for  life  may  re- 
cover rent  to  time  of  the  decease  of  such  tenant,  98. 
1836,  June  13,  P.  L.  568. 

§§  44  and  50,  providing  for  collecting  rent  by  foreign  at- 
tachment, 243. 
June  16,  P.  L.  784. 

§  13,  providing  a  remedy  by  an  injunction  for  waste,  392. 
June  16,  P.  L.  755. 

§  83,  providing  for  the  payment  of  one  year's  rent  from 

sheriff's  sale  of  personal  property,  234. 
1849,  April  9,  P.  L.  533. 

§    i,  the  $300  exemption  law,  283. 
1855,  April  27,  P.  L.  368. 

§    8,  providing  for  tenant's  mortgaging  leases  and  ma- 
chinery, 193.  . 
April  27,  P.  L.  368. 

§    3,  providing  for  inheritance  by  illegitimate  children,  177. 
1860,  March  31,  P.  L.  382. 

§§  21  and  22,  relating  to  forcible  entry  and  detainer,  331. 
1863,  Dec.  14,  P.  L.  1125. 

§    i,  for  possession  at  the  end  of  lease,  352. 
1865,  Feb.  28,  P.  L.  253. 

§    i,  for  possession  at  the  end  of  lease  in  case  of  its  loss, 
375- 


INDEX.  287 

References  are  to  the  sections. 

ACTS  OF  ASSEMBLY— (Continued.) 
1867,  Feb.  20,  P.  L.  30. 

§    i,  providing  that  the  act  of  Dec.  14,  1863,  shall  apply 
when  owner  has  acquired  title  by  descent  or  pur- 
chase, 354. 
1869,  April  17,  P.  L.  69. 

§  i,  exempting  sewing  machines  from  distraint  for  rent,. 

281. 
June  25,  P.  L.  1275. 

§    i,  providing  that  an  appeal  under  act  of  Dec.  14,  1863,. 

will  be  a  supersedeas  in  Philadelphia,  355. 
1876,  May  13,  P.  L.  171. 

§  i,  exempting  rented  pianos  from  distraint,  280. 
1878,  June  12,  P.  L.  i. 

Giving  preference  of  wages  over  rent,  240. 
1883,  April  19,  P.  L.  9. 

§  3,  providing  for  a  distraint  on  tenant's  goods  for  taxes, 

296. 
1883,  June  5,  P.  L.  88. 

§  i,  providing  that  illegitimates   may  inherit  from   each 

other,  177. 
1885,  June  3,  P.  L.  61. 

§  i,  liability  of  landlord  for  fire  escapes,  156. 
1887,  April  13,  P.  L.  53. 

§  i,  providing  that  adopting  parents  shall  inherit;  177. 
May  18,  P.  L.  118. 

§  i,  requiring  written  consent  of  landlord  for  tenant  to 

bind  property  for  mechanics'  liens  for  repairs,  313. 
1889,  May  13,  P.  L.  197. 

§  i,  providing  for  mortgages  of  royalties  for  mines,  201. 
1891,  May  20,  P.  L.  102. 

§  i,  providing  for  mortgaging  of  ores,  201. 
May  26,  P.  L.  122. 

§  i,  providing  for  the  payment  of  rent  in  case  of  assign- 
ment for  the  benefit  of  creditors,  189. 
1893,  May  23,  P.  L.  117. 

§  I,  providing  for  fees  of  justices,  405. 
June  8,  P.  L.  344. 

§  I,  giving  married  women  power  to  lease,  38. 
1895,  June  24,  P.  L.  238. 

providing  for  liability  of  tenants  in  common  in  possession 

to  co-tenants,  50. 
1899;  March  i,  P.  L.  3. 

§  i,  providing  for  fees  of  constables,  405. 

ADMINISTRATOR 

cannot  lease,  52. 


288  INDEX. 

References  are  to  the  sections. 

AGENTS 

See  LEASE,  §§  23  to  32. 

AGREEMENTS  FOR  A  LEASE 
directions  for  preparing,  i. 
specific  performance  will  be  decreed,  2. 
damages  for  breach  of,  3. 
where  a  tenant  under  a  parol  agreement  for  a  lease  is  let  into 

possession  and  makes  improvements,  4. 
lease  completed  by  an  actual  entry  of  tenant,  5. 

AGREEMENT  TO  SELL  TO  TENANT 
practical  directions,  466. 
covenant  to  sell,  123. 

AGRICULTURAL  FIXTURES 
See  FIXTURES,  152. 

AMICABLE  EJECTMENT 
covenant  for,  129. 
if  tenant  has  not  paid  his  rent  punctually  he  must  be  warned 

before  entry  of  judgment,  130. 
for  a  purchaser  to  have  benefit  of,  lease  should  be  assigned  to 

him,  131. 

no  appeal  to  Supreme  Court  in  case  of,  132. 
position  of  under-tenants  in  case  of,  133. 
possession  by  those  holding  paramount  title  in  case  of,  134. 
form  for  entry  in  court  of,  534. 
practical  directions  as  to  necessity  for  proper  description  in,  505. 

APPEAL 

to  Supreme  Court  under  act  of  1772  for  possession,  350. 

to  court  of  common  pleas  under  act  of  1830  for  non-payment  of 

rent,  215. 

to  Supreme  Court  under  act  of  1830  for  non-payment  of  rent,  218. 
to  court  of  common  pleas  under  act  of  1863  for  possession,  370. 
to  Supreme  Court  under  act  of  1863  for  possession,  374. 

APPORTIONMENT  OF  RENT. 

in  case  of  a  sale  of  reversion  in  parts,  94. 
payable  to  tenants  for  life  under  act  of  1834,  98. 
payable  in  grain  to  life  tenant,  99. 

APPRAISEMENT 

in  case  of  a  distraint,  277. 

forms  for,  526. 
in  case  of  $300  exemption  law,  284. 

form  for,  533. 


INDEX.  289 

References  are  to  the  sections. 

ASSESSMENTS  '  >'J 

protection  to  tenant  from  agreement  to  pay  assessments,  496. 

ASSIGNMENT  OF  LEASE 

covenant  not  to  assign,  109. 

construed  strictly,  no. 

an  assignment  by  law  not  a  breach,  in. 

form  for,  523. 
must  be  by  writing,  178. 
difference  between,  and  underletting,  179. 
position  of  under-tenant,  180. 
power  of  tenant  to  assign,  181. 
tenant  bound  to  pay  rent  after  he  assigns,  182. 
assignee  liable  as  long  as  he  holds  title,  183. 
implied  indemnity  of  assignee,  184. 
when  tenant  dies,  186. 

when  representatives  become  personally  liable,  187. 
directions  in  taking,  469. 

assignee  assigning  liable  if  he  retains  interest,  501. 
necessity  of  having  a  clause  for  forfeiture  for  a  breach  of  cov- 
enant not  to  assign,  502. 

danger  of  breach  of  covenant  not  to  assign  by  taking  partner, 
SOS- 

ASSIGNMENT  FOR  THE  BENEFIT  OF  CREDITORS 
assignee  has  right  to  accept  lease  or  not,  188. 
landlord's  preference  in  case  of,  189. 
liability  of  assignee  for  rent,  191. 

agreement  of  assignee  with  sheriff  for  sale  of  goods,  190. 
assignee  cannot  lease,  59. 

ASSIGNEE 

extension  of  right  to  terminate  lease  to,  481. 

ATTACHMENT 

of  rents  by  attachment-execution,  242. 
foreign  attachment,  243. 

BANKRUPTCY 

collection  of  rent  in  case  of,  233. 

BREACH  OF  THE  PEACE 

See  FORCIBLE  ENTRY  AND  DETAINER. 
should  not  be  made  by  re-entry,  126. 

CERT10RARI 

under  act  of  1772  for  possession,  348. 
under  act  of  1830  for  possession,  216. 
under  act  of  1863  for  possession,  373. 
19 


290  INDBX. 

References  are  to  the  sections. 

COLLECTION  OF  TAXES 

by  distraint  on  tenant's  goods,  296. 

COLLECTING  RENTS 

by  suit  before  justices  of  the  peace,  224. 

the  hearing,  225. 

in  court,  226. 

in  equity  by  receivers,  227. 
'        during  administration  of  receivers,  228. 

loss  of  rents  collected  by  receiver  from  sub-tenants,  229. 
in  case  of  death  of  tenant  rent  not  exceeding  for  one  year  pre- 
ferred, 230. 

landlord  to  present  claim  to  orphans'  court,  231. 
in  bankruptcy,  in  case  of,  232. 

not  apportioned  under  act  of  1898,  233. 
from  sheriff's  sales. 

act  of  1836,  234. 

apportioned,  235. 

landlord  should  notify  sheriff  of  claim,  236. 

note  taken  no  waiver  of,  237. 

goods  must  have  been  liable  to  distraint,  238. 
preference  of  wages  over  rent,  act  of  April  9,  1772,  240. 
claim  for  wages  may  be  sold,  241. 
when  claimed  by  two  adverse  parties,  239. 
by  attachment-execution. 

the  remedy,  242. 
by  foreign  attachment. 

the  remedy,  243. 

CONSTRUCTION 
rules  for,  9. 
when  doubtful  tenant  favored,  498. 

CO-PARTNERS 

lease  by,  33,  34. 
lease  to,  35. 

CORPORATIONS 

may  make  leases  as  natural  persons,  41. 

may  contract  without  writing,  42. 

leases  to  foreign,  43. 

officers  must  be  authorized  to  lease,  44. 

cannot  disable  itself  from  performing  public  duties  by  a  lease,  45. 

seal  of,  not  necessary  to  hold  in  assumpsit,  46. 

may  ratify  agent's  acts,  47. 

COVENANTS 

running  with  the  land,  103. 


INDEX.  291 

References  are  to  the  sections. 

COVENANTS— (Continued.) 

implied,  run  with  the  land,  104. 
when  run  with  the  land,  105. 

assignees  bound  by,  when  running  with  the  land,  106. 
examples  of  running  with  the  land,  107. 
to  pay  rent,  108. 

not  to  assign  or  underlet,  109.  , 

are  construed  strictly,  no.  .  i>     *  ' 

assignment  by  law  not  a  breach  of,  in.  , 

as  to  use  and  occupation,  112. 
landlord  not  bound  to  repair,  113. 
repairs  a  tenant  is  bound  to  make,  114. 
of  tenant  to  repair,  115. 

tenant  is  not  bound  under,  in  case  of  damage  by  act  of  God 

or  public  enemies,  116. 
tenant  cannot  charge  landlord  for  permanent  repairs  made 

without  his  authority,  117. 
of  tenant  to  repair  minor  to  that  of  the  tenant  to  pay  rent, 

118. 
measure  of  damages  when  landlord  breaks  his  covenant  to 

repair,  119.  • 

tenant  not  relieved  from  loss  in  business  during  repairs,  120. 
that  improvements  shall  remain,  dangerous,  121. 
definition  of  the  word  improvement,  122. 
of  landlord  to  sell  to  tenant,  123. 
t  for  re-entry,  124. 

requisites  before  entry,  125. 

there  must  not  be  a  breach  of  the  peace  in  making  entry, 

126. 
in  Pennsylvania  a  re-entry  is  not  necessary  for  a  forfeiture, 

127. 

waiver  of,  forfeiture,  128. 
for  amicable  action  and  confession  of  judgment  in  ejectment,  129. 

See  AMICABLE  EJECTMENT. 
implied  for  quiet  possession,  135. 

to  protect  tenant  against  paramount  claims,  136. 
to  use  property  in  tenant-like  manner,  137. 
as  to  farming,  138. 

CROPS 

way  going,  definition  of,  301. 
who  entitled  to,  302. 
straw  included  in,  303. 
grain  sown  in  spring  not  included,  304 
may  be  sold  by  tenant,  305. 
the  protection  of,  306. 
in  case  of  execution.  307. 


292  INDEX. 

References  are  to  the  sections. 

CROPS— (Continued.) 

landlord  not  entitled  to  grain  as  rent  until  delivered,  309. 
as  rent  will  pass  to  purchaser  at  orphans'  court  sale,  310. 
payable  as  rent,  growing  at  death  of  landlord,  will  go  to  heirs,  311. 
covenants  as  to,  507,  508,  510,  511,  512,  513,  514,  515  and  516. 
covenants  as  to  farming,  138. 

necessity  for  having  time  fixed  for  delivery  of  landlord's  share  of 
crops,  495. 

CROPPER 

definition  of,  308.  ,.     , 

CUSTOM 

way  going  crop,  301. 

DATE 

of  lease,  21. 

DEATH  OF  LESSEE 

collection  of  rent  in  case  of,  230,  231. 

DEATH  OF  LESSOR 

transfer  of  lease  in  case  of  will,  176. 
transfer  of  lease  in  case  of  intestacy,  177. 

DISTRAINT  FOR  RENT 

See  REPLEVIN;  FORMS. 
act  of  March  21,  1772,  regulating,  244. 
after  termination  of  lease,  245. 
by  lessor  who  has  conveyed,  246. 
by  executors  and  administrators,  247. 
by  assignee  of  the  reversion,  248. 
by  joint  tenants,  249. 
by  tenants  in  common,  250. 
by  guardians,  251. 

by  receivers,  252.  .   ,#  • 

by  heirs,  devisees,  etc.,  253. 
for  what  rent,  254. 

goods  liable  to,  255.  '} 

goods  privileged  from,  256. 
authority  given  for,  257. 
penalty  for,  when  no  rent  due,  258. 
for  more  rent  than  is  due,  259. 

entering  premises  to  make,  260.  % 

upon  the  goods,  261. 
rescue  of  goods  taken  by,  262. 
interference  with  proceedings  for,  263. 
anreasonable  or  excessive,  264. 


INDEX.  293 

References  are  to  the  sections. 

DISTRAINT  FOR  RENT— (Continued.) 
placing  watchman  in  case  of,  265. 
leaving  goods  on  premises  in  case  of,  266. 
notice  to  tenant  of,  267. 
tender  of  rent  upon  a,  268. 
liability  for,  of  goods  of  a  stranger,  276. 
appraisement  of  goods  upon  a,  277. 
sale  of  goods  upon  a,  278. 

manner  of  sale  upon  a,  279.  .  -'i 

exemption  of  rented  pianos  in  case  of,  280. 
exemption  of  sewing  machines  in  case  of,  281. 
liability  of  goods  sold  according  to  instalment  plan  for,  282. 
three  hundred  dollar  exemption  law  in  case  of,  283. 
appraisers  under  exemption  law  in  case  of,  284. 
under-tenants  cannot  claim  benefits  of  exemption  in  case  of,  285. 
refusal  of  exemption  in  case  of,  286. 
who  can  claim  exemption  in  case  of,  287. 
when  claim  for  exemption  should  be  made  in  case  of,  288. 
request  of  appraisement  in  case  of  claim  for  exemption  upon  a, 

289. 
how  claim  for  exemption  to  be  made  when  tenant  absent  in  case 

of,  290. 
rights  to,   in  case  property   is   fraudulently   removed  under  act 

of  1772,  291. 

goods  of  a  stranger  not  to  be  followed  in  case  of,  292. 
goods  sold  exempt  from,  in  case  of  removal,  293. 
must  be  for  rent  due  at  time  of  removal,  294. 
right  to,  for  rent  not  due  under  act  of,  1825,  295. 
providing  for  distraint  after  removal  of  tenant,  477. 

EJECTMENT 

See  AMICABLE  EJECTMENT. 

EMBLEMENTS  . '  » 

See  CROPS.  ' 

definition  of,  297. 

growing  grass  not  to  be  taken  as,  299. 

things  not  of  annual  growth  not,  299.  ' 

right  to,  lost  by  forfeiture  of  lease,  300. 

EMINENT  DOMAIN 

See  RENTED  PROPERTY  TAKEN  FOR  PUBLIC  USE. 
see  if  devised  premises  in  Philadelphia  can  be  taken  for  public  use, 
456. 

ENCUMBRANCES 

examination  as  to,  458.  >.  • 


294  INDEX. 

References  are  to  the  sections. 

EQUITY 

a  specific  performance  of  an  agreement  for  a  lease  will  be  decreed 

in,  2, 
remedy  by  injunction  in,  for  waste,  392. 

ESTREPEMENT 
writ  of,  390. 

EVICTION 

in  part  does  not  suspend  the  whole  rent  when  tenant  remains,  315. 

physical  expulsion  not  necessary  for,  317. 

operation  of,  against  current  rent,  320. 

by  an  injunction,  321. 

not  by  conduct  not  depriving  tenant  of  the  use  of  property,  322. 

waiver  of,  by  paying  rent,  323. 

when  landlord  takes  possession  in  case  of  tenant's  desertion,  3I& 

landlord  using  a  way,  319. 

when  landlord  takes  possession  after  a  fire,  316. 

EVIDENCE 

parol,  admissible  in  case  of  fraud,  accident  or  mistake,  6. 

in  some  other  cases,  7. 
agreement  in  writing  to  exclude,  8. 

EXECUTOR 

unless  made  a  trustee,  cannot  lease,  54. 

in  case  he  has  a  mere  power  to  sell,  55. 

in  case  of  a  trust  to  sell,  but  not  to  rent,  56. 

a  lease  a  part  of  decedent's  assets,  186. 

EXEMPTION 

under  $300  law,  283. 

appraisers  appointed,  284. 

under-tenants  cannot  claim,  285. 

refusal  of  exemption,  286. 

who  can  claim,  287. 

when  claim  should  be  made,  288. 

request  for  appraisement,  289. 

how  claim  made  when  tenant  absent,  290. 
of  rented  pianos  from  distress,  280. 
of  sewing  machines  from  distress,  281. 
liability  of  goods  sold  under  instalment  plan  to  distr»ss,  282. 

FARM  LEASE 

See  CROPS. 

form  for,  508. 

on  shares,  509. 
i.  on  shares,  short  form,  510.  .4 


INDEX.  295 

References  are  to  the  sections. 

FARM  LEASE— (Continued.) 

covenant  in  that  lessee  shall  fallow  land  and  mow  but  once  a 
year,  511. 

may  dispose  of  hay  and  straw,  512. 
shall  plant  clover,  513. 
shall  use  hay,  dung,  etc.,  514. 
fire  clause  in  No.  i,  515. 
fire  clause  in  No.  2,  516. 
protecting  landlord  in,  485. 

prevention  of  the  termination  of  farm  leases  by  death  of  tenant, 
475- 

FEES 

of  constables,  405. 
of  justices,  405. 
of  watchmen,  406. 

FIRE 

tenant  liable  to  pay  rent  if  premises  destroyed  by,  96,  97. 

clause  for  farm  lease,  515,  516. 

clause  for  lease  of  dwelling,  517. 

clause  for  lease  of  a  business  property,  518. 

FIXTURES 

domestic,  150. 

trade,  151. 

agricultural,  152. 

not  removed  at  end  of  lease,  153. 

tenant's,  liable  to  execution,  154. 

notice  to  landlord  upon  constable's  sale  of,  155. 

duty  of  placing  fire  escapes  in  Philadelphia,  156. 

of  tenant  to  be  protected  in  case  of  renewed  leases,  467. 

protecting  landlord's  rights  to  fixtures  at  end  of  lease,  500. 

FORCIBLE  ENTRY  AND  DETAINER 
act  of  assembly  relating  to,  331. 
must  be  a  breach  of  the  peace  to  constitute,  332, 
to  constitute  there  must  be  violence,  335. 

FORCIBLE  DETAINER 
what  constitutes,  333. 
tenant  holding  over  not  liable  for,  334. 

FORMS 

a  lease,  507. 
farm  lease,  508. 
farm  lease  on  shares,  509. 
farm  lease  on  shares,  short  form,  510. 

covenant  that  lessee  shall  fallow  the  land  and  mow  but  once  a 
year,  511. 


296  INDEX. 

References  are  to  the  sections. 

FORMS— (Continued.) 

*.•    .'•  '       covenant  that  lessee  may  dispose  of  hay  and  straw,  512. 

covenant  to  lay  down  part  of  the  ground  with  clover,  etc.,  513. 

covenant  that  lessee  shall  use  the  hay,  dung,  etc.,  on  the  prem- 
ises, 514. 

fire  clause  for  farm  lease,  No.  i,  515. 

fire  clause  for  farm  lease,  No.  2,  516. 

fire  clause  for  a  dwelling,  517. 

fire  clause  for  a  business  property,  518. 
.}.•;'        to  protect  against  assignment  of  lease,  519. 

for  insertion  after  ejectment  clause,  520. 

giving  an  option  to  purchase,  521. 

surety  for  tenant,  522. 

assignment  of  lease,  523. 

surrender  of  lease,  524. 

distress  warrant,  525. 

notice  of  distraint,  526. 

affidavit  of  appraisers  and  appraisement,  527. 

consent  of  tenant  to  permit  distrained  goods  to  remain,  528. 

notice  of  constable's  sale,  529. 

claim  for  benefit  of  exemption  law,  530. 

summons  of  appraisers,  531. 

affidavit  of  appraisers  and  election,  532. 

appraisement  of  exempted  goods,  533. 

amicable  action  and  judgment  in  ejectment,  534. 

notice  to  quit  for  non-payment  of  rent  under  act  of  1830,  535. 

complaint,  536. 

summons,  537. 

writ  of  restitution,  538. 

record,  539. 

notices  to  quit  at  end  of  lease,  540. 

complaint  for  possession  under  act  of  17/2,  541. 

precept  to  the  sheriff,  542. 

inquisition,  543. 

record,  544. 

summons  to  third  party  claiming  title,  545. 

complaint  for  possession  under  act  of  1863,  546. 

summons,  547. 

record,  548. 

writ  of  restitution,  549. 

notice  in  case  of  lost  lease,  550. 

second  notice,  551. 

notice  when  tenant  unable  to  answer  first  notice,  552. 

FRAUD 

parol  evidence  admissible  in  case  of,  6. 
false  representations  by  lessee,  455. 


INDEX.  297 

References  are  to  the  sections. 

FRAUDULENT  REMOVAL 

right  to  distrain  in  case  of,  291. 

goods  of  a  stranger  not  to  be  followed,  292. 

goods  sold  exempt  in  case  of,  293. 

rent  must  be  due  at  time  of,  294. 

right  to  collect  rent  not  due,  295. 

FURNITURE 

list  of,  should  be  annexed  to  lease  when  rented,  62. 

GRANTEE 

rent  due  after  a  sale,  86. 

custom  in  Philadelphia  to  apportion  rent,  87. 

GROWING  CROPS 
See  CROPS. 

GUARDIAN 

leases  by.  37. 

rights  of,  to  lease  mines,  410. 

HEIRS 

rights  of,  under  intestate  laws,  177. 

INABILITY  OF  TENANT  TO  DISPUTE  THE  TITLE  OF  HIS 
LANDLORD 

the  rule  as  to,  and  its  operation,  139. 
liability  of  tenant  to  forfeit  his  lease,  140. 
case  of  collusion  with  tenant,  141. 
case  of  fraud  by  landlord,  142. 

IMPLIED  TENANCY 

by  the  payment  of  rent,  75. 

IMPLIED  COVENANTS 

run  with  the  land,  104. 

INSURANCE 

by  tenants  distinguished  from  other  insurance,  314. 
protecting  insurance  from  conduct  of  tenant,  488. 

INTEREST 

on  royalties,  443. 

LEASE 

See  TERM;  RENT;  AMICABLE  EJECTMENT;  INABILITY  OF  LAND- 
LORD TO  DISPUTE  TITLES  OF  LANDLORD. 
directions  for  preparing,  I. 
specific  performance  will  be  decreed,  2. 
k  '  damages  for  a  breach  of  an  agreement  for,  3. 


298  INDEX. 

References  are  to  the  sections. 

LEASE — (Continued.) 

when  a  tenant  under  a  parol  agreement  for,  is  let  into  posses- 
sion and  makes  improvements,  4. 
completed  by  an  actual  entry,  5. 
parol  evidence  admissible  in  case  of  fraud,  accident  or  mistake 

in,  6. 

parol  evidence  admissible  in  some  other  cases,  7. 
agreements  in  writing  to  exclude  verbal  understandings  as  to,  8. 
rules  for  construction  of,  9. 
definition  of,  10. 

distinction  between,  and  a  license,  n. 
incorporeal  things  may  be  granted,  12. 
lease  of,  in  farm  on  shares,  13. 
implied  renting. 

in  case  a  tenant  remains  with  permission  and  pays  rent  after 

lease  expires,  14. 

occupancy  under  an  agreement  for  a  lease,  15. 
occupancy  of  land  where  no  agreement  to  pay  rent,  16. 
where  a  purchaser  at  sheriff's  sale  elects  not  to  take  tenant,  17. 
where  a  tenant  remains  in  possession  after  the  end  of  lease  with- 
out consent,  18. 

a  tenant  in  possession  under  a,  void,  19. 
act  of  1772  requiring  written  lease,  20. 
mistake  or  omission  of  date  of,  21. 
mistakes  or  omissions  of  names  of,  22. 
by  agents. 

the  manner  of  signing  and  sealing  in  case  of,  23. 
ratification  of  a  parol  lease  void  under  the  statute  of  frauds 

in  case  of,  24. 

should  have  scaled  authority  to  make  a  sealed  lease,  25. 
sealing  leases  without  authority  personally  liable,  26. 
not  under  seal,  27. 
parol  evidence  admissible  to  prove  a  lease  not  under  seal 

as  principals,  28. 
making  leases  in  their  own  names  deprives  their  principals 

of  their  rights  as  landlords,  29. 
when  agent  makes  a  lease  without  disclosing  his  principal, 

tenant  cannot  deny  that  the  agent  is  not  landlord,  30. 
agents  without  authority  in  writing  may  make  a  lease  not 

over  three  years,  31. 
personal  liability  of  agents  for  their  contracts  when  they 

do  not  disclose  their  principals,  32. 
by  partners. 

should  be  sealed  by  all,  33. 

lease  by  one  of,  of  partnership  property,  34. 


INDEX.  299 

References  are  to  the  sections. 

LEASE — (Continued.) 
to  partners. 

if  they  take  leases  in  their  own  names  for  the  firm,  hold 

in  trust  for  the  firm.  35. 
by  minors,  36. 
by  guardians,  37. 
by  married  women, 

under  act  of  1893.  38. 
to  married  women,  39. 

by  tenants  for  life  must  terminate  at  death,  40. 
by  corporation, 

corporations  may  lease  as  natural  person,  41. 

may  contract  without  writing,  42. 

officers  of,  must  be  authorized  to  lease,  44. 

cannot  disable  itself  from  performing  public  duties  by  a 
lease,  45. 

seal  of,  not  necessary  to  hold  in  assumpsit,  46. 

may  ratify  agent's  acts,  47. 
by  tenants  in  common. 

may  make  joint  or  separate  lease,  48. 

when  a  joint  lease  made  by,  they  must  sue  jointly,  49. 

liability  of,  to  pay  co-tenants  not  in  possession,  50.   '    * 
by  trustees  and  executors. 

powers  of,  limited  by  trusts,  51. 

administrators  cannot  lease,  52. 

until  real  estate  is  sold  to  pay  debts,  rents  go  to  heirs  or 
devisees,  53. 

executor,  unless  he  is  made  a  trustee,  cannot  lease  the  same, 

54- 

in  case  executors  have  a  mere  power  to  sell  real  estate,  55. 

in  case  of  a  trust  to  sell,  but  not  to  rent,  56. 

power  of  trustees  to  agree  to  a  renewal  of  a  lease,  57. 

case  of  personal  liability  under  a  lease,  58. 

assignee  for  the  benefit  of  creditors  cannot  lease,  59. 
description  of  property  in,  not  necessary  to  particularly  describe, 
60. 

ambiguous  supplied  by  evidence  outside  lease,  61. 

list  of  furniture  should  be  annexed  to  lease,  62. 

intention  of  what  is  leased  from  actual  use,  63. 

on  the  wrong  corner,  64. 

exceptions  and  reservations  in  lease,  65. 

implied  grant  of  things  necessary  for  use  of  property,  66. 

authority  of  landlord  to  enter  after  he  has  leased,  67. 
where  landlords  do  not  sign,  143. 
where  tenants  do  not  sign.  144. 
seals  of,  145. 


300  INDEX. 

References  are  to  the  sections. 

LEASE— (Continued.)  ; 

witnesses  to,  146. 
erasures  in,   147. 
interlineations   in,    147. 
stamps  on,  148. 
recording,  149. 

necessity  of,  when  tenant  does  not  take  possession,  494. 

MECHANICS'  LIENS 

power  of  tenant  to  bind,  312. 

act  of  1867  requiring  written  consent  of  landlord  to  bind, 
313- 

MINING  LEASES 

mining  leases  in  Pennsylvania,  407. 

mining  right  distinct  from  surface  right,  408. 

rights  of  tenant  for  life,  409. 

rights  of  guardians  to  lease,  410.  * 

tenant  bound  to  work  mine,  411. 

clause  for  re-entry  necessary,  412. 

incidental  rights  of  mining  tenant,  413. 

right  of  support,  414. 

loss  of  springs  on  surface,  415. 

tenant  cannot  open  mines,  416. 

rent  to  be  paid,  though  no  clay  be  taken  out,  not  damages,  417. 

no  warranty  of  coal,  418. 

relief  in  case  of  mistake,  419. 

tenants  taking  partners,  420. 

forfeiture  for  not  developing  favored,  421. 

manner  of  conveying  in  case  of  sales  of  minerals,  422. 

questions  as  to  whether  there  is  a  sale,  a  lease  or  right  to  take 
coal  without  a  sale,  423. 

mining  by  tenants  in  common,  424. 

oil  and  gas  leases,  425. 

right  to  mine  for  oil  or  gas  is  necessarily  exclusive  of  the  right 
of  the  landlord  to  mine,  426. 

liability  to  pay  compensation  in  case  of  exhaustion  of  mines,  427. 

obligation  to  drill  through  land  worthless  for  oil  or  gas,  428. 

mortgages  of  mineral  leaseholds,  429. 

perpetual  lease  of  ore  lands,  430. 

options  to  drill  or  to  pay  rent,  431. 

provisions  for  the  forfeiture  of  an  oil  or  gas  lease  for  the  benefit 
of  the  lessor  only,  432. 

right  of  mining  tenants  to  pollute  streams,  433. 

liability  for  manufacturing  coke  and  injuring  crops,  etc.,  of  ad- 
joining premises,  434. 

as  to  whether  or  not  a  mining  lease  has  been  forfeited  for  not 
I  operating,  435. 


INDEX.  301 

References  are  to  the  sections. 

MINING  LEASES— (Continued.) 

rights  to  make  openings  to  reach  coal,  436. 

agreements  for  diligence  in  drilling  and  working  for  oil,  etc.,  437. 
in  agreements  for  coal  leases  time  is  of  the  essence  of  the  con- 
tract, 438. 
relief  against  forfeiture  of  an  oil  and  gas  lease  for  non-payment 

of  rent,  439. 

partnership  in  mineral  leaseholds,  440. 
relief  against  forfeiture  of  mining  leases,  441. 
a  lease  for  exploration  for  oil  ceases  when  exploration  finished, 

442. 

interest  on  royalties,  443. 
tenant  will  not  be  compelled  in  equity  to  test  land  for  oil  or  gas 

if  there  is  no  fraud,  444. 

covenants  to  pay  royalties  run  with  the  land,  445. 
when  lessee  to  follow  his  own  judgment  in  sinking  additional 

wells,  446. 
the  meaning  of  the  phrase,  "to  continue  so  long  as  oil  or  gas 

are  produced  in  paying  quantities,"  447. 
necessity  for  having  oil  leases  recorded,  448. 
jurisdiction  in  equity  for  account  of  gas,  etc.,  449. 
rent  may  be  payable  in  oil  or  gas,  450. 
liability  of  assignee  of  an  oil  or  gas  lease  for  the  payment  of 

royalties,  451. 
distinguishing  between  a  lease  and  sale  granting  mining  rights, 

489. 
necessity  of  a  particular  description  of  the  extent  of  a  right  to 

mine,  490. 

ascertaining  if  any  old  mining  leases  are  outstanding,  491. 
protection  to  landlord  who  reserves  the  surface  in  a  right  to  mine, 

492. 

MORTGAGE 

by  tenant  under  act  of  1855,  193. 

lease  must  be  recorded  under  act,  194. 
machinery  put  in  after  mortgage  under  act,  195. 
^       a  breach  of  covenant  not  to  assign,  196. 
act  not  restricted  to  mining  leases,  197. 
fixtures  and  machinery  under  act  cannot  be  removed  with- 
out consent  of  mortgagee,  198. 
of  mining  rights  under  act  of  1853,  199. 
of  ores,  etc.,  under  act  of  1891,  200. 
by  landlord  under  act  of  1899,  201. 

NEGLIGENCE  AS  TO  RENTED  PROPERTY 
liability  of  owners,  379. 

in  case  of  an  open  grate,  381. 


302  INDEX. 

References  are  to  the  sections. 

NEGLIGENCE  AS  TO  RENTED  PROPERTY— (Continued.) 
liability  between  tenants,  385. 

depending  upon  the  obligation  to  repair,  386. 

of  contractor  for  injury,  393. 

for  leakage  from  a  cesspool,  394. 

for  not  repairing  sidewalk,  395. 
remedy  in  case  tenant  commits  waste,  387. 

by  an  injunction  for  waste,  392. 

by  suit  for  waste,  391. 
defects  before  renting,  376. 
landlord  employing  plumber,  378. 

and  tenant  may  both  be  liable,  380. 

may  sue  at  the  same  time,  382. 
where  landlord  interferes  with  tenant,  383. 

tenant   injures   property,   384. 

property  rented  is  unfit  for  use,  377. 
act  of  1882  as  a  remedy  for  waste,  388. 
order  to  permit  inspection  of  waste,  389. 
writ  of  estrepement,  390. 

NOTICE  TO  QUIT 

See  FORMS;  PROCEEDINGS  FOR  POSSESSION. 

OPTIONS  TO  PURCHASE 
giving  tenant  right,  466. 

PAROL  TESTIMONY 

provision  prohibiting  to  affect  written  leases,  470. 

PARTNERS 

leases  by  and  to,  33,  34,  35. 

PENALTY 

making  penalty  to  be  paid  as  rent,  468. 

POSSESSION 

See  PROCEEDINGS  FOR  POSSESSION  UNDER  FOLLOWING  ACTS: 
proceedings  for,  under  act  of  1772,  336  to  351. 
proceedings  for,  under  act  of  1825,  219  to  223. 
proceedings  for,  under  act  of  1830,  202  to  218. 
proceedings  for,  under  act  of  1863,  352  to  374. 
proceedings  for,  under  act  of  1865.  375. 

PRACTICAL  DIRECTIONS  FOR  RENTING 
examination  of  the  property,  452. 
see  what  neighbors  can  do  in  diminishing  the  value  of  demised 

premises,  453. 

inquiries  of  landlord  before  renting.  454. 
false  representations  by  lessee,  455. 


INDEX.  303 

References  are  to  the  sections. 

PRACTICAL  DIRECTIONS  FOR  RENTING— (Continued.) 

see  if  demised  premises  in  the  city  of  Philadelphia  are  liable  to  be 

taken  for  public  use,  456. 
examination  of  the  title  of  the  landlord,  457. 
examination  as  to  encumbrances,  458. 
see  if  lease  can  be  destroyed  by  an  orphans'  court  sale,  459. 
see  if  there  is  a  liability  for  a  distraint  for  taxes,  460. 
obtaining  rights  for  a  show  case,  461. 
obtaining  sign  rights  by  tenant,  462. 
provisions  in  case  of  fire  or  other  casualty,  463. 
directions  for  making  rents  certain  for  distraint  and  possession, 

464. 

directions  in  case  of  an  underletting,  465. 
giving  rights  to  tenants  to  purchase,  466. 

fixtures  of  tenant  to  be  protected  in  cases  of  renewed  leases,  467. 
making  a  penalty  to  be  paid  as  rent,  468. 
directions  in  taking  assignments  of  leases,  469. 
provisions  prohibiting  parol  testimony  to  affect  written  leases, 

470. 

restrictions  as  to  the  use  of  demised  premises,  471. 
making  rent  due  in  advance  by  occurrences  after  the  lease,  472. 
providing  against  the  liability  of  the  owner  for  nuisances,  473. 
prevention  of  defences  being  waived   by  paying  rent  or  other 

action,  474. 
prevention  of  the  termination  of  farm  leases  by  death  of  tenant, 

475- 

provisions  for  amicable  ejectments,  476. 
providing  for  distraint  after  removal  of  tenant,  477. 
giving  sub-tenants  the  benefit  of  the  exemption  law,  478. 
providing  for  surety  in  cases  of  extensions  of  lease,  479. 
getting  the  consent  of  the  surety  to  alter  lease,  480. 
extension  of  right  to  terminate  lease  to  assignees,  etc.,  481. 
danger  of  landlord  losing  his  right  to  rent  by  the  non-performance 

of  an  entire  contract,  482. 
cautions  in  preparing  agreements  for  the  extension  of  term  and 

for  options,  483. 
necessity  of  a  consideration  for  an  agreement  to  change  the  terms 

of  a  lease,  484. 

protecting  landlord  in  farm  leases,  485. 
making  the  payment  of  taxes,  charges,  etc.,  as  rent,  486. 
necessity  of  reading  leases,  487. 

protecting  fire  insurance  from  conduct  of  tenant,  488. 
distinguishing  between  a  lease  and  sale  granting  mining  rights, 

489. 
necessity  of  a  particular  description  of  the  extent  of  a  right  to 

mine,  400. 


304  INDEX. 

References  are  to  the  sections. 

PRACTICAL  DIRECTIONS  FOR  RENTING— (Continued.) 
ascertaining  if  any  old  mining  leases  are  outstanding,  491. 
protection  to  landlord  who  reserves  the  surface  in  a  lease  to  mine, 

492- 

binding  remainderman  in  case  of  a  lease  by  tenant  for  life,  493. 

necessity  of  recording  oil  lease  when  tenant  does  not  take  pos- 
session, 494. 

necessity  for  having  time  fixed  for  delivery  of  landlord's  share  of 
crops,  495. 

protection  of  parties  in  agreements  to  pay  for  taxes,  charges, 
assessments,  etc.,  496. 

dangers  in  using  clause  that  landlord  may  change  terms  of  lease, 

497- 

in  case  of  doubtful  construction,  the  tenant  favored,  498. 
fixing  a  time  for  the  tenant  to  perform  an  agreement  to  make 

improvements,  499. 
protecting  landlord's  right  to  tenant's  fixtures  at  the  end  of  the 

lease  from  levy,  etc.,  500. 
if  an  assignee  assigns  his  lease  and  retains  an  interest  he  will 

remain  liable,  501. 

necessity  of  having  a  clause  for  forfeiture  for  a  breach  of  a  cove- 
nant not  to  assign,  502. 
guarding  against  the  breach  of  trifling  covenants  giving  the  right 

to  recover  possession,  503. 
in  case  a  tenant  agrees  to  use  or  not  to  use  demised  premises  for 

a  certain  business  or  purpose,  504. 
danger  of  there  being  a  breach  of  a  covenant  not  to  assign  lease 

by  taking  a  partner,  505. 
necessity  for  a  description  to  locate  premises  in  leases  or  amicable 

ejectments,  506. 
giving  right  to  distrain  off  the  demised  premises,  506.* 

PROCEEDINGS  FOR  POSSESSION  AT  END  OF  TERM  UNDER 
ACT  OF  MARCH  21,  1772. 

See  FORMS. 
words  of  the  act,  336. 

who  are  entitled  to  the  benefit  of  the  act,  337. 
rent  must  be  certain,  338. 
notice  to  quit,  339. 
service  of  notice  to  quit,  340. 
complaint,  341. 
venire  to  the  sheriff,  342. 
service  of  summons,  343. 
proceedings  before  the  jury,  344. 
proceedings  when  the  title  is  disputed,  345. 
finding  of  the  jury,  judgment  and  writ  for  possession,  346. 
proper  form  for  the  record,  347. 


INDEX.  305 

References  are  to  the  sections. 

PROCEEDINGS  FOR  POSSESSION  AT  END  OF  TERM  UNDER 
ACT  OF  MARCH  21,  1772— (Continued.) 
removal  by  certiorari,  348. 

what  can  be  shown  at  hearing  upon  certiorari,  349. 
appeal  to  the  Supreme  Court,  350. 
tenant  may  traverse  the  inquisition  in  an  action  of  ejectment,  351. 

PROCEEDINGS  FOR  POSSESSION  AT  END  OF  TERM  UNDER 
ACT  OF  DEC.  24,  1863. 

See  FORMS. 
words  of  the  act,  352. 

power  of  justice  of  the  peace  extended  to  aldermen,  353. 
act  extended  to  assignees,  354. 
appeal  will  be  a  supersedeas  in  Philadelphia,  355. 
tenancy  to  be  established  by  parol  or  written  agreement,  356. 
notice  to  quit,  357. 

tenant  not  bound  to  give  notice  to  quit,  358. 
notice  given  by  assignee  of  lease,  359. 
verbal  notice,  360. 
time  of  giving  notice,  361. 

no  limitation  for  landlord  to  proceed  on  notice,  362. 
notice  to  quit  may  be  waived,  363. 
service  of  notice  for  possession,  364. 
complaint,  365. 
summons,  366. 
service  of  summons,  367. 
hearing,  368. 

warrant  for  possession,  369. 
appeal,  370. 
judgment,  371. 
record,  372. 
certiorari,  373. 
appeal  to  Superior  Court,  374. 

PROCEEDINGS   FOR   POSSESSION   AT   END    OF   LEASE   IN 
CASE  OF  ITS  LOSS 

See  FORMS. 
act  of  Feb.  28,  1865,  relating  to  same,  375. 

PROCEEDINGS  FOR  POSSESSION  FOR  NON-PAYMENT  OF 
RENT  UNDER  ACT  OF  APRIL  3,  1830. 

See  FORMS. 
the  act,  202. 

who  may  have  the  benefit  of,  203. 
the  rent  due  must  be  certain,  204. 
the  notice  to  quit,  205. 
by  whom  notice  can  be  given,  206. 

to  whom  notice  should  be  given  and  manner  of  service,  207. 
20 


306  INDEX. 

References  are  to  the  sections. 

PROCEEDINGS  FOR  POSSESSION  FOR  NON-PAYMENT  OF 
RENT  UNDER  ACT  OF  APRIL  3,  1839— (Continued.) 
payment  of  rent  on  removal,  208. 
the  complaint,  209. 
summons,  210. 

the  service  of  the  summons,  211. 
the  hearing,  212. 
the  necessary  proof,  213. 
the  judgment,  214. 
appeal,  215. 
certiorari,  216. 
the  execution,  217. 
appeal  to  Supreme  Court,  218. 

PROCEEDINGS    FOR    POSSESSION    OR    SECURITY    WHEN 
TENANT  REMOVES  IN  PHILADELPHIA 
act  of  March  25,  1825,  219. 
tenant  must  remove,  220. 

notice  must  be  signed  by  landlord  or  his  agent,  221. 
complainant  must  show  a  lease  for  years,  222. 
tender  of  rent,  223. 

PUBLIC  USE 

property  taken  for. 
See  RENTED  PROPERTY  TAKEN  FOR  PUBLIC  USE. 

RECORDING 

necessity  of  recording  oil  lease  when  tenant  does  not  take  pos- 
session, 494. 

RENT 

in  what  payable,  82. 

what  may  issue  out  of,  83. 

interest  on,  84. 

when  no  time  fixed  for  payment  of,  85. 

due  after  a  sale,  86. 

custom  in  Philadelphia  to  apportion,  87. 

tenant  bound  by  his  covenant  to  pay,  although  he  assigns  his 
lease,  88. 

due  landlord  before  he  dies  goes  to  his  executor  as  personal  prop- 
erty, 89. 

due  landlord  after  he  dies  goes  to  his  heir  or  devisee,  90. 

agreement  of  tenant  to  pay  assessments,  91. 

notice  to  lessor  on  contingency  releasing  a  lessee,  92. 

landlord  leaving  a  number  of  children,  each  child  is  entitled  to 
his  or  her  share  of,  93. 

apportionment  of,  in  case  of  a  sale  of  reversion  in  parts,  94. 

payable  in  advance  upon  contingency,  95. 


INDEX.  307 

References  are  to  the  sections. 

RENT— (Continued.) 

tenant  bound  by  his  covenant  to  pay  though  property  is  burned, 

96. 
instances  of  losses  to  tenants  for  the  want  of  an  exemption  from 

the  payment  of,  in  case  of  fire,  97. 

made  payable  to  tenant  for  life  apportioned  under  act  of  1834,  98. 
payable  in  grain,  etc.,  apportioned  under  act  of  1834,  99. 
when  payable  in  grain,  not  due  until  delivered,  100. 
interest  of  landlord  in  share  of  grain  cannot  be  taken  in  execution 

before  severance,  101. 
good  will  of  demised  premises,  102. 

RENTED  PROPERTY  TAKEN  FOR  PUBLIC  USE 
constitutional  provision  relating  to,  396. 
difference  when  State  takes,  397. 
damages  awarded  to  landlords  and  tenants  for,  398. 
landlords  and  tenants  may  unite  to  recover  damages  for,  401. 
effect  of  taking,  on  liability  for  rent  of,  403. 
what  damages  can  be  recovered  for,  404. 
party  wall  taken  down  by  public  authority,  399. 
tenant  can  recover  damages  to  building  erected  before  ordinance 

for  removal,  400. 
land  may  be  cultivated  until  possession  taken,  402. 

REPAIR 

landlord  not  bound  to,  113. 

repairs  a  tenant  is  bound  to  make,  114. 

express  covenant  of  tenant  to,  115. 

tenant  not  bound  to,  injuries  by  act  of  God  or  public  enemies,  116. 

tenant  cannot  charge  landlord  for  permanent  repairs  made  without 

his  authority,  117. 

agreement  of  landlord  to,  minor  to  that  of  tenant  to  pay  rent,  118. 
measure  of  damages  when  landlord  breaks  his  agreement  to,  119. 
tenant  not  relieved  from  loss  in  business  during  repairs,  120. 

REPLEVIN 

writ  of.  269. 

time  for  issuing  writ  of,  270. 

order  for  the  writ  of,  271. 

entering  security  for,  272. 

the  pleadings  in,  273. 

trial  and  judgment  in,  274. 

the  proper  remedy  for  illegal  distraint  upon  stranger's  goods,  275. 

SEAL 

kind  of,  145. 

SHOW  CASE 

agreement  in  lease  for,  461.. 


308  INDEX. 

References  are  to  the  sections. 

SIGN  RIGHTS 

agreement  in  lease  for,  462. 

STAMPS 

on  leases,  148. 

SURETY  FOR  TENANT 

when  liable  to  be  sued  at  once,  157. 

covenant  of,  runs  with  the  land,  158. 

tenant  bound  to  exonerate,  159. 

position  of  in  case  of  tenant  holding  over,  160. 

alteration  of  a  lease  affects,  161. 

discharge  of.  by  variation  of  lease,  162. 

discharge  of,  if  landlord  allows  goods  distrained  to  be  removed, 

163. 

discharge  of,  by  giving  time,  165. 
liable  under  a  void  lease,  166. 
demand  of  rent  by  landlord,  164. 
providing  for  surety  in  case  of  extension  of  lease,  479. 
getting  consent  of  surety  to  alter  lease,  480. 

SURRENDER 

by  parol  of  lease  for  more  than  three  years,  324. 

must  be  accepted,  325. 

evidence  of  acceptance  of,  326. 

to  agent,  327. 

effect  of,  on  request,  328. 

by  a  tenant  does  not  extinguish  the  term  of  a  sub-tenant,  329. 

effect  of  silence  of  landlord  upon,  330. 

TAXES 

distraint  for,  296. 

see  if  there  is  a  liability  for  taxes,  460. 

TENANT  FOR  LIFE 

binding  remainderman,  493. 

TENDER 

to  stop  a  distraint,  268. 

TERM 

estate  for  years,  68. 

at  will,  69. 

tenancy  from  year  to  year,  70. 

tenancy  from  year  to  year  by  express  agreement,  74. 

tenancy  from  quarter  to  quarter,  71. 

perpetual  leases,  72. 

not  stated  in  lease,  73. 

implied  by  the  payment  of  rent,  75. 


INDEX.  309 

References  are  to  the  sections. 

TERM— (Continued.) 

landlord  may  elect  to  treat  tenant  holding  over  after  lease  as 

tenant  or  trespasser,  76. 
tenant  from  month  to  month  may  terminate  lease  at  end  of  any 

month,  77. 

a  lease  from  year  to  year,  at  the  pleasure  of  the  parties,  78. 
the  beginning  and  end  of  lease,  79. 
continuation  of  lease  at  option  of  tenant,  80. 
agreements  for  extension  of,  and  options,  81,  483. 

TERMS  OF  LEASE 

necessity  of  consideration  to  change,  484. 

TIME 

the  essence  of  the  contract  in  oil  leases,  438. 

TRANSFER    OF    INTEREST    OF    LANDLORD    IN    DEMISED 
PREMISES 

by  a  sale  of  demised  premises,  167. 

by  an  assignment  of  the  landlord  for  the  benefit  of  creditors,  168. 

by  a  conveyance  to  trustees  to  collect  rents,  etc.,  169. 

by  the  will  of  the  landlord,  176. 

by  descent,  177. 

by  a  judicial  sale,  170. 

notice  of  affirmation  of  lease  to  be  given  to  tenant  in  case 

of,  171. 
when  lease  antedates  incumbrance,  lease  preserved  in  case 

of,  172. 

when  rent  is  paid  in  advance,  in  case  of,  173. 
rent  before  and  after  date  of  sheriff's  deed,  174. 
right  of  a  purchaser  at  an  orphans'  court  sale  to  rents  or 
possession,  175. 

TRUSTEE 

power  to  lease,  51. 

UNDERLETTING 

directions  in  case  of,  465. 

giving  sub-tenants  benefit  of  exemption  law,  478. 

implied  indemnity  to  under-tenant,  185. 

WAGES 

preference  of,  over  rent,  240. 


A     000  695  384 


2SI   StHS 


